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Raja Moti Chand and ors. Vs. Mahabir Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in125Ind.Cas.581a
AppellantRaja Moti Chand and ors.
RespondentMahabir Prasad
Cases ReferredCiv. and Hira Lal v. Tikam Singh
Excerpt:
civil procedure code (act v of 1908), section 47 - interlocutory orders in execution, whether appealable--mortgage--decree against several properties--mortgagee's right to sell any property--transferee of part of property pendente lite, whether entitled to ask for apportionment. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute......was filed on the 15th of september, 1927, and the prayer was in the following words:one-fourth share of house no. 40 aforesaid purchased by the objector-petitioner may not be sold and rs. 100 or any other proportionate mortgage-money may be ordered to be paid to the decree-holder'. after hearing the parties the court first passed an order on the 9th of june, 1928, stating that the mortgagee having released three-fourths of the share and also another property had split up the mortgage and, therefore, the objector was entitled to get the mortgage-debt apportioned; it ordered 'the parties should give the market value of the different portions of the mortgaged property in different hands within fifteen days.'4. on the 5th of january, 1929, the decree-holder applied stating that the order.....
Judgment:

1. This is a decree-holders' appeal arising out of certain execution proceedings. A preliminary objection is taken to the hearing of this appeal. It will be convenient to give the facts of this case before disposing of this objection.

2. In 1913 a mortgage-deed was executed in favour of Raja Moti Chand by Dr. Bageshwari Narain and others for a large sum of money hypothecating several properties including a house described as house No. 40 in Chowk Allahabad. Three-fourths share in this house was subsequently purchased by Lala Madho Prasad, A suit was instituted on the 17th of August, 1920, on the basis of this mortgage-deed and was decreed in part by the first Court. Both parties appealed to the High Court where there was a compromise decree on the 12th of March. 1926. Under this compromise it was agreed among other things that Mahabir Prasad would pay Rs. 13,500 to the plaintiffs and the plaintiffs would exempt the three-fourths share in this house which had been purchased by him. A decree was passad on the basis of this compromise for a consolidated amount of over Rs. 2,00,000 which was to be realised by sale of all the properties with the exception of the three-fourths share in this house. The preliminary decree was followed by a final decree which was prepared on the 26th of March, 1927.

3. Another creditor of the mortgagors obtained a simple money-decree in 1914 and in execution of that decree attached the one-fourth share in this house on the 16th of March, 1925, while the appeal was still pending in the High Court. The attaching creditor was, however, not a party to that appeal. After the compromise decree he filed an objection in the execution Court to the effect that the mortgagee had released a part of the mortgaged property and there ought to be a proportionate reduction in the amount of the mortgage-money. This objection was filed on the 15th of September, 1927, and the prayer was in the following words:

One-fourth share of house No. 40 aforesaid purchased by the objector-petitioner may not be sold and Rs. 100 or any other proportionate mortgage-money may be ordered to be paid to the decree-holder'. After hearing the parties the Court first passed an order on the 9th of June, 1928, stating that the mortgagee having released three-fourths of the share and also another property had split up the mortgage and, therefore, the objector was entitled to get the mortgage-debt apportioned; it ordered 'The parties should give the market value of the different portions of the mortgaged property in different hands within fifteen days.'

4. On the 5th of January, 1929, the decree-holder applied stating that the order of the 9th of June, 1928, was an interlocutory order deciding a principle against him from which he could not appeal and requested the Court to pass a final order. The Court, therefore, passed an order on the 18th of March, 1929, which is the subject-matter of an appeal. Under this order it fixed the amount which the decree-holder was entitled to recover and ordered that on payment of that amount within one month by Mahabir Prasad his one fourth share should be released from sale, but in case of default of payment that portion also will be sold. The costs were to be borne by both the parties.

5. On behalf of the respondent the first objection is that the decree-holder ought to have appealed from the order of the. 9th of June, 1928, and having allowed it to become final the decision that the mortgage-debt has been split up was final between the parties and could not be reopened. The argument is that the decision of that question of principle was a determination of a question within Section 47 of the Civil Procedure Code and, therefore, by virtue of the provisions in Section 2 of the Code of Civil Procedure it amounted to a decree and ought to have been appealed from.

6. It seems to us that every order passed by an execution Court in the course of proceedings under Section 47 does not necessarily amount to a decree so as to be appealable. Section 47 must be read with the definition of 'decree' in Section 2. The mere determination of a question would not be sufficient but that determination must amount to the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to the matters in controversy. Unless an interpretation is put on the definition of decree in Section 2, every conceivable order in the Execution Department would become automatically appealable. There are several cases of this Court which have accepted this principle. We may, for instance, refer to the case of Husain Bhai v. Beltie Shah Gilani 83 Ind. Cas. 1035 : 46 A. 733 : 22 A.L.J. 706 : A.I.R. 1924 All. 808 : L.R. 5 A. 482 Civ. and Hira Lal v. Tikam Singh : AIR1926All401 .

7. The order of the 9th of June, 1928, was in our opinion, in the nature of an interlocutory order expressing the opinion of the Court that the mortgage-debt had been split up and there ought to be a rateable reduction in the decretal amount. The objection of the judgment-debtor was not disposed of by the Court conclusively as it had still to determine the market value of the different portions of property and to fix the rateable liability of the one-fourth share of Mahabir Prasad. As to the objections filed by Mahabir Prasad the Court had expressed no complete opinion in the point involved and it did not finally disposed of his objection. There was, therefore, no conclusive determination of the matter in controversy and the Court, in our opinion, was still seized of the case. No appeal, therefore, lay from that interlocutory order and the preliminary objection has no force.

8. On the merits it seems to us that the order of the Court below cannot be supported. The respondent is a purchaser at an auction held in execution of a simple money-decree under which a part of the mortgaged property had been attached during the pendency of the mortgage suit. It is quite clear that he cannot acquire any paramount right against the mortgagee decree holder and is bound by the compromise decree which was ultimately passed in this suit and under that decree there was a joint liability for the payment of the entire decretal amount against the entire mortgaged property excluding the three-fourths share in the house. It is, therefore, not open to him to go behind that decree and urge in the Execution Department that the amount should be split up. The execution Court ought not to be allowed to go behind the decree to allow the decree-holder to realise the whole amount by sale of the property entered in the decree. Once a joint mortgage-decree is passed against several items of property the mortgagee-decree-holder is entitled to realise the entire amount from any part of those properties and he can also sell them in any order that he wishes to choose. Neither the judgment-debtor nor any transferee pendente lite from him is entitled to have the decretal amount split up and the liability apportioned.

9. We accordingly allow this appeal and setting aside the decree of the Court below, dismiss the objections of the judgment-debtor with costs in both Courts including in this Court fees on the higher scale.


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