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B. Sheo Prasad Singh Vs. Muffassil Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All580; 118Ind.Cas.590
AppellantB. Sheo Prasad Singh
RespondentMuffassil Bank Ltd.
Cases Referred and Suraj Narain Singh v. Jagbali Shukul
Excerpt:
- - for these reasons we think that the order of the lower appellate court is perfectly correct.1. this is a judgment-debtor's appeal arising out of proceedings in execution of a simple money decree obtained by the decree-holder under the following circumstances:2. on 6th april 1920, the appellant executed a deed of mortgage in favour of the decree-holder for rs. 6,000. the appellant was a member of a joint hindu family with his nephew, and the property hypothecated belonged to the joint family. accordingly, the nephew instituted a suit for setting aside the mortgage in favour of the decree-holder. the suit succeeded, and a decree was passed in favour of the nephew on 6th december 1926 declaring the mortgage-deed to be invalid. the decree-holder then instituted a suit for simple money decree, which he obtained on 31st october 1927 for a sum of rs. 12,621-14-0. in execution of that.....
Judgment:

1. This is a judgment-debtor's appeal arising out of proceedings in execution of a simple money decree obtained by the decree-holder under the following circumstances:

2. On 6th April 1920, the appellant executed a deed of mortgage in favour of the decree-holder for Rs. 6,000. The appellant was a member of a joint Hindu family with his nephew, and the property hypothecated belonged to the joint family. Accordingly, the nephew instituted a suit for setting aside the mortgage in favour of the decree-holder. The suit succeeded, and a decree was passed in favour of the nephew on 6th December 1926 declaring the mortgage-deed to be invalid. The decree-holder then instituted a suit for simple money decree, which he obtained on 31st October 1927 for a sum of Rs. 12,621-14-0. In execution of that decree he attached the interests of the judgment-debtor in the mortgaged property. That the interests of a member of a joint Hindu family in the joint property can be attached by the creditor admits of no doubt, and has not been disputed in this appeal. The judgment-debtor objected to the attachment with reference to Order 34, Rule 14, Civil P.C., which provides:

Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of such suit notwithstanding anything contained in Order 11, Rule 2.

3. The contention put forward on his behalf is that it is not open to the decree-holder to have the mortgaged property sold in execution of the simple money decree, except in the manner laid down in Order 34, Civil P.C., In our opinion this contention is absolutely untenable. Order 34, Rule 14, pre-supposes that a valid mortgage capable of enforcement subsists and that if the mortgaged property is sold in execution of the simple money decree, the incumbrance created by the mortgage will continue to subsist. In the present instance, the mortgage originally made by the appellant has been declared to be a nullity. It cannot be regarded as a mortgage. In other words, no incumbrance exists. The decree-holder himself has obtained a simple money decree in lieu of what was originally considered to be a charge. If, therefore, there is no subsisting mortgage, Order 34, Rule 14, can have no possible application. The cases Chedi Lal v. Saadat-un-nissa Bibi [1916] 39 All. 36 and Suraj Narain Singh v. Jagbali Shukul [1920] 42 All. 566, are in point. For these reasons we think that the order of the lower appellate Court is perfectly correct. We dismiss the appeal with costs.


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