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Musammat Mahadei Vs. Jagannath Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All313; 78Ind.Cas.225
AppellantMusammat Mahadei
RespondentJagannath Das
Excerpt:
civil procedure cods (act v of 1908) section 47 - mortgage decree, effect of--execution of decree--objection by defendant absolved from liability--procedure. - - it is quite clear that the effect of his judgment was in no way to absolve chunni lal from liability and that the preliminary decree remained a good decree as against chunni lal. mahadei was undoubtedly a party to the suit in which the decree was passed under the explanation to section 47, civil procedure code, and the question that she raised was clearly to our mind a question relating to the satisfaction of the decree......property are brought to sale. when this decree was put into execution for the sale of the two houses mahadei put in an 'objection in which she stated that the houses in question did not belong to chunni jual but belonged to her and that they should not be sold by auction. she contended that if they were sold at auction it should be proclaimed at the time of the sale that she owned these two houses, and that chunni lal had no right, title or interest therein. this objection appears to us not to be in any way an objection impugning the decree but an objection setting forth a desire to explain the decree. mahadei was undoubtedly a party to the suit in which the decree was passed under the explanation to section 47, civil procedure code, and the question that she raised was clearly to.....
Judgment:

1. The litigation which has resulted in this appeal has taken a most unfortunate course. A woman called Mahadei, the widow of a Halwai called Mahadeo, on the death of her first husband married a certain Chunni Lal. Second marriages are permitted amongst Halwais. Mahadeo had owned two houses. On the 26th February 1907 a mortgage was executed for consideration in favour of Mahant Ishar Das by which these two houses were hypothecated. Ishar Das' successor-in-interest filed a suit upon this mortgage against Mahadei and Chunni Lal. The suit was decreed against both of them. Mahadei alone appealed. The District Judge found in appeal that there was an irregularity in the execution of the mortgage which vitiated it against both executants but as Chunni Lal had not appealed he allowed Mahadei's appeal only. It is quite clear that the effect of his judgment was in no way to absolve Chunni Lal from liability and that the preliminary decree remained a good decree as against Chunni Lal. The decree as it stood was against Chunni Lal personally with a lien declared upon the two houses but a final decree was subsequently prepared against Chunni Lal only ordering the sale of the two houses. This decree, as it stands, does not affect Mahadei in any way. She is not named in it and to read the decree it can only mean that Chunni Lal's interests in the two houses are to be brought to sale. That is all that a mortgage-decree can mean. It is passed against property standing in the name of a particular person and implies that the intersest J: that particular person in the specified property are brought to sale. When this decree was put into execution for the sale of the two houses Mahadei put in an 'objection in which she stated that the houses in question did not belong to Chunni Jual but belonged to her and that they should not be sold by auction. She contended that if they were sold at auction it should be proclaimed at the time of the sale that she owned these two houses, and that Chunni Lal had no right, title or interest therein. This objection appears to us not to be in any way an objection impugning the decree but an objection setting forth a desire to explain the decree. Mahadei was undoubtedly a party to the suit in which the decree was passed under the Explanation to Section 47, Civil Procedure Code, and the question that she raised was clearly to our mind a question relating to the satisfaction of the decree. So Section 47 is applicable to the matter and Mahadei's objection should have been decided upon the merits as was ordered by the late Mr. Shibendra Nath Benerji on the 7th November 1921. We cannot agree with the views taken by the late Mr. Banerji's successor and by the District Judge. We hear that, in the meanwhile, Mahadei has filed a suit for a declaration to the same effect, that she has succeeded in this suit and that the suit is now pending before the District Judge in appeal. The fact that she has done so renders the remainder of the proceedings somewhat academic. It is absolutely clear that what must be decided is to whom these houses belong and whether the question is decided under Section 47 or by a regular suit appears to us not very material in the circumstances of the case. What appears to be desired is a correct decision and what seems to be less important is the method of arriving at it. Fortunately, the law now meets any difficulty in this matter for a proceeding under Section 47 can be treated as a suit and a suit can be treated as a proceeding under Section 47. We accordingly remit the matter to the learned District Judge for decision according to law. He will be seized both with the appeal in the regular suit and this present objection. Costs here and hitherto will abide the result.


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