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Sahu Parshottam Saran Vs. Brahma Nand and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All297; 83Ind.Cas.832
AppellantSahu Parshottam Saran
RespondentBrahma Nand and ors.
Cases ReferredSarju Kumar Mukerji v. Thakur Prasad
Excerpt:
.....that the decree-holder was not acting in good faith in proceeding against the share in village karam alipur before taking any action against the mortgaged properties in two other villages, namely, miranpur and shekhupur. me insisted that he was entitled to proceed against the mortgaged properties in such order as he might think best in his own interests. he entered certain other pleas intended to suggest the fact that the objector sahu parshottam saran had made a very good bargain by his purchase of the karam alipur property and was intentionally obstructing the execution proceedings, in order to enjoy the usufruct of that property for as long a period as possible. the execution court has held that there was nothing in the pleadings before it upon which an issue of fact could be..........at auction, in execution of a simple money-decree, the interests of one khalilur rahman in village karam alipur. khalilur rahman mortgaged to the respondent brahma nand his rights in village karam alipur, along with a number of other properties, and brahma nand has obtained a decree upon the said mortgage which is now in process of execution. the share purchased by the. appellant in village karam alipur having been put up to sale in execution of the mortgage-decree, the said appellant filed an objection. the main point on which he apparently insisted in his petition of objection to the execution court was that the decree-holder was bound to proceed against the various items of property involved in the mortgage-decree in the order in which they were specified in the decree itself, that.....
Judgment:

1. The appellant, Sahu Parshotam Saran, has purchased at auction, in execution of a simple money-decree, the interests of one Khalilur Rahman in village Karam Alipur. Khalilur Rahman mortgaged to the respondent Brahma Nand his rights in village Karam Alipur, along with a number of other properties, and Brahma Nand has obtained a decree upon the said mortgage which is now in process of execution. The share purchased by the. appellant in village Karam Alipur having been put up to sale in execution of the mortgage-decree, the said appellant filed an objection. The main point on which he apparently insisted in his petition of objection to the Execution Court was that the decree-holder was bound to proceed against the various items of property involved in the mortgage-decree in the order in which they were specified in the decree itself, that order being, of course, identical with the order followed in the specification given at the foot of the mortgage. There was no force whatever in this plea. It was rightly overruled in the Court below and it cannot be pressed in this Court. In the third paragraph of the petition of objection in the Court below, Sahu Parshottam Saran made a vague allegation, to the effect that the decree-holder was not acting in good faith in proceeding against the share in village Karam Alipur before taking any action against the mortgaged properties in two other villages, namely, Miranpur and Shekhupur. He suggested that the decree-holder's action was in consequence of some bargain entered into between himself and the owners of the mortgaged properties in Miranpur and Shekhupur, the terms of which were being kept concealed from the Court. The decree-holder filed a written pleading, in the course of which he denied having entered into any bargain whatever with the owners of the properties in Miranpur and Shekhupur. Me insisted that he was entitled to proceed against the mortgaged properties in such order as he might think best in his own interests. He entered certain other pleas intended to suggest the fact that the objector Sahu Parshottam Saran had made a very good bargain by his purchase of the Karam Alipur property and was intentionally obstructing the execution proceedings, in order to enjoy the usufruct of that property for as long a period as possible. The Execution Court has held that there was nothing in the pleadings before it upon which an issue of fact could be framed, that the decree-holder was clearly within his rights in- proceeding against the property in village Karam Alipur, and that there was no force in the objection. In the petition of appeal to this Court an attempt is made to represent this case as one bearing some analogy with those cases in which the Courts have held that the integrity of a mortgage has been broken up by reason of the acquisition of a portion of the mortgaged property by the mortgagee himself. We were referred in argument to the decision of a Bench of this Court in the case of Sarju Kumar Mukerji v. Thakur Prasad 58 Ind. Cas. 743 : 18 A.L.J. 690 : 2 U.P.L.R. (A.) 174 : 42 A. 544. The learned Judges who decided that case obviously felt that they were applying a recognized principle of law to circumstances to which it had never previously been applied in any reported case. Their decision, however amounts to no more than this. Even after a decree has been passed upon a mortgage it is open to a judgment-debtor to enter in the Execution Court a pleading, to the effect that something has taken place since the passing of the decree which amounts to a partial satisfaction of the decree. If such a plea be entered, the Execution Court is entitled, and indeed is under a duty, to enquire into the same and to continue the execution proceedings in respect of so much only of the decree which it finds after' enquiry to be still unsatisfied. It seems to us quite impossible to read the vague and doubtful plea set up in the third paragraph of Sahu Parshottam Saran's petition of objection in the Court below as amounting to a plea that any portion of the decree had been in any manner satisfied. As it stands the plea amounts to no more than this, that the decree-holder had reasons of his own, which he has. not disclosed to the Court, for taking action against the property in Karam Alipur before proceeding against the properties in Miranpur and Shekhupur. This plea cannot be brought within the purview of the principles laid down in the reported case above referred to, and we think the Execution Court was quite right in brushing it aside. We dismiss this appeal with costs, including fees on the higher scale.


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