(1) Kapur Chand father of Amar Nath and Kidar Nath, defendants Nos. 1 and 2, obtained an expert decree against Rulda defendant No. 3 on 28-12-1950, in execution of which the decree-holder got attached the land in dispute.
On 2-1-1953, a compromise was effected between the parties stating that the ex parte decree may be set aside and the suit be entered at a new number and a decree for a sum of Rs. 3,086/- with costs be passed in favour of the plaintiff against the defendant. If, however, the defendant pays a sum of Rs. 1,700/- in all up to 1-5-1953, then the entire decree should be deemed to be satisfied.
In accordance with the terms of the compromise a decree was immediately passed for a sum of Rs. 3,086/- with costs. No fresh attachment was, however, effected after passing of the fresh decree. On 26-2-1953, Rulda defendant No. 3, judgment-debtor, executed an agreement in favour of the present plaintiff's mortgaging the land in suit and some other land for a sum of Rs. 5,500/- the mortgage deed was executed later on 9-5-1953. Kapur Chand died and his sons Amar Nath and Kidar Nath defendants Nos. 1 and 2 attempted to recover the decretal amount by sale of the land in suit.
A petition under Order XXI, Rule 58, Code of Civil Procedure, was thereupon presented by the present plaintiff's claiming that the land should be sold subject to their mortgagee rights. This objection petition was first dismissed on 10-7-1954, it was again presented but was again dismissed on 9-10-1954 for want of prosecution. The plaintiff's thereupon instituted the present suit for a declaration that the land could not be sold without the mortgage in their favour remaining intact.
It was also claimed that defendant No. 3 had taken possession of the land two months before the institution of the suit and on this allegation possession of the land was also sought. During the pendency of the suit defendant No. 3 further mortgaged a part of the land in question in favour of defendants Nos. 4 and 5. They have thus also been made parties as defendants. The suit has been contested on various grounds including the bar of Order II, Rule 2, Code of Civil Procedure, and the bar of limitation.
The plea under Order II, Rule 2, Code of Civil Procedure, is based on the assertion that a previous suit against Amar Singh defendant No. 5 regarding a part of the land had also been filed by the plaintiff's. Some of the defendants have completely denied the existence of the alleged mortgage and have pleaded that it was wholly without consideration; its validity has also been denied on the ground that it took place during the pendency of the consolidation proceedings; it has further been averred that the mortgage had been effected to defeat the rights of defendants Nos. 1 and 2 and that Karm Singh was a necessary party to the suit.
(2) On the pleadings, the following issues were framed for trial:
1. Is the suit barred under Order II, Rule 2, Civil Procedure Code?
2. Is the suit barred by limitation?
3. Is the land in suit mortgaged with the plaintiff's? If so, for what amount?
4. Is the alleged mortgage in favour of the plaintiff's void?
5. Whether the alleged mortgage was effected to defect the rights of defendants Nos. 1 and 2?
6.Whether Karm Singh is a necessary party?
8. What is the effect of the mortgage in favour of defendants Nos. 4 and 5 made during the pendency of the suit?
(3) The trial Court negatived issue No. 1 holding the suit not to be barred. On issue No. 2, the suit was held to be within limitation, having been filed on 8-10-1955 within one year from the dismissal of the objections dated 9-10-1954. The trial Court under this issue also observed that according to Order XXI, Rule 55, Code of Civil Procedure, when a decree is set aside the attachment is deemed to be withdrawn, with the result that in the present case it was not necessary for the plaintiff's to file any objection petition.
Under issue No. 3, it was found that the mortgage of the suit land in favour of the plaintiff's had been established and they had a right to get possession of the land in question. The Court was also of the view that it was unnecessary to ascertain the amount of consideration which passed between the parties, as passing of consideration is only to be determined on redemption. In spite of this observation, however, the trial Court held that the suit had been mortgaged for Rs. 5,500/- Under issue No. 4, the mortgage was held to be valid because there was not proof that the mortgage had been effected during the pendency of the consolidation proceedings.
The consolidation proceedings were held to be over by the time the mortgage was effected and there was also no proof that permission of the consolidation officer had not been taken for effecting the mortgage. Under issue No. 5, it was held that there was no proof of the mortgage having been effected to defeat the rights of defendants Nos. 1 and 2. Karm Singh was also held to be an unnecessary party and issue No. 6 was decided against the defendants. The mortgage in favour of defendants Nos. 4 and 5 was, however, held to be void as against the plaintiff's; Issue No. 8 was thus decided in their favour. As a result of these findings, the trial Court granted a decree for declaration and possession in favour of the plaintiff's, as claimed.
(4) On appeal taken by the defendants to the Court of the learned Additional District Judge, the order of the trial Court was reversed and the plaintiff's were held not to be entitled to the decree claimed. The decision on issues Nos. 1 and 2 was affirmed. It has, however, been observed, while dealing with issue No. 2, that the order dated 10-7-1954 could not be ignored and that the order dated 9-10-1954 could not be of any assistance to the plaintiff's for the purpose of rejecting the plea of limitation raised by the defendants.
The lower appellate Court also found that there was no vacation of the attachment. The Court below has been very much influenced by the circumstance that the plaintiff's themselves chose to take action under Order XXI, on the assumption that the attachment was in existence and therefore it did not lie in their mouth to assert that the attachment had been vacated. It was, in this connection, found that there was no reversal of the original ex parte decree, but it was in substance and effect only a substitution of the impugned decree for the ex parte one because one consolidated order was passed which connoted that the substitution of the decree and the condition on which the substituted decree was to be deemed to be satisfied, were all part and parcel of the same transaction.
The mere circumstance of a fresh number being given to the suit did not affect the essential and true nature of the compromise. The change in the number of the suit was merely intended to be for the administrative convenience on technical grounds. As the judgment-debtor did not care to pay the reduced amount by 1-5-1953, the decree-holder applied for the sale of the property on the day immediately following, that is 2-5-1953. With these observations the Court of first appeal held that the attachment continued and the mortgage in favour of the plaintiff's was void.
With respect to the bogus nature of the mortgage and want of consideration, the finding of the Court below clearly is, that major portion of the mortgage is without consideration and that the transaction was not a bona fide one. The finding of the first Court that the mortgage had been made for consideration has been reversed as also the finding that it had not been effected with a view to defeat the rights of Amer Nath and Kidar Nath defendants. Void nature of the mortgage in favour of defendants Nos. 4 and 5 had been upheld.
(5) On second appeal by the plaintiff's, the sole argument, which has been seriously pressed, has been concentrated on issues Nos. 3 and 4. The counsel has submitted that the moment the original decree was set aside, the attachment automatically stood withdrawn under the provisions of Order XXI, Rule 55(c) of the Code of Civil Procedure. This provision is in the following terms:
(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or
(b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or
(c)the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor, so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.'
As is obvious, in the three contingencies contemplated by this provision, the attachment is to be deemed to be withdrawn; and such withdrawal, if the judgment-debtor so desires is to be proclaimed, at his expense, with a copy of the proclamation, to be affixed in the manner prescribed for attachment of immovable property in Rule 54. In my opinion, it is open to the parties by an agreement or compromise to take their case out of the deeming provisions contained in this rule, and it would be a question of fact in each case to be determined on its own circumstances, whether or not it was intended that the attachment should be deemed to be withdrawn.
As is shown above, the decree in favour of the plaintiff's was not just set aside, but by means of an agreement between the parties the ex parte decree was converted into a decree on the merits, in the presence of the parties, for the same amount and only a concession was granted to the judgment debtor to satisfy the decree by payment of a lesser amount before 1-5-1953. It has not been contended before me that the judgment-debtor got it proclaimed that the attachment had been withdrawn nor was the proclamation got affixed in the manner prescribed by Order XXI, Rule 54, Code of Civil Procedure.
In my opinion, therefore, the parties did not intend the deeming consequences which follow that reversal of a decree or when a decree is set aside within the contemplation of Order XXI, Rule 55, Code of Civil Procedure to apply to their case; on the other hand they intended the attachment to continue for the benefit of the decree-holder so that he may proceed to realise the decretal amount under the substituted decree in pursuance of the proceedings already started. The learned Additional District Judge has also come to the same finding which being a finding of fact is not open to attack on second appeal. In any case, on the merits also I have no hesitation in endorsing his conclusions, which have done substantial justice between the parties and are not shown to be contrary to law.
(6) In so far as the question of consideration of the mortgage is concerned, it would hardly arise in face of the finding that the attachment should be considered to be in existence; but otherwise too the Court below has given a finding against the plaintiff's and nothing substantial has been shown by the counsel for the appellants against it. At one stage the appellants asked for time to compromise the dispute and I gave them nearly a month and a half, but, for reasons best known to the parties, no settlement could be arrived at.
(7) For the reasons given above, the appeal fails and is hereby dismissed. In the circumstances of the case, however, there will be no order as to costs.
(8) Appeal dismissed.