1. The petitioner obtained a mortgage decree and in execution the respondent came forward alleging that she was a prior mortgagee and requesting the Court under Order 34, Rules 12 and 13, Civil P.C., to sell the property free of her mortgage and to apply the proceeds of the sale first in discharging her own debt. The petitioner objected to this procedure, alleging that her mortgage was nominal and collusive, not supported by consideration and invalid. The District Munsif of Ramachandrapur after a summary inquiry held that prima facie the petitioner had proved that she was a prior mortgagee and granted the petition. It is frankly conceded by Mr. Raghava Rao on behalf of the respondent that the order of the learned Munsif as it stands is wrong. Clearly the sum claimed; by the respondent or the full value of her mortgage should not be paid to her without a proper adjudication after full trial; regarding the validity of the mortgage. This money cannot be paid over to her after a summary inquiry of this kind. It is however pleaded that this revision petition should be allowed and the petition remanded for a full and proper inquiry under Order 34, Rule 12. In the first place I do not think that Order 34, Rule 12 contemplates an inquiry whether a person who is! a stranger to the suits is a prior mortgagee or not. Order 34, Rule 12 contemplates the admitted existence of a prior mortgagee and lays down the procedure to be adopted in bringing the mortgaged properties to sale, the prior mortgagee being given the option of having the property sold subject to his mortgage or free of his mortgage. In the latter case he is entitled to have his mortgage discharged out of the proceeds of the sale.
2. It is true that the executing Court has to make certain inquiries of an incidental nature; but it cannot be said that this inquiry into the rights of a stranger to the suit is in the nature of an incidental inquiry in execution. An order passed under Order 34, Rule 12 is not appealable at all. It is suggested that an order passed under Order 34, Rule 12 after a full inquiry would amount to a decree within the meaning of Section 2(2), Civil P.C., but this cannot be so; for the respondent was not a party to the suit. The mere filing of an application after a decree has been passed cannot make her a party to the decree, even if, as Mr. Raghava Rao contends, a mortgage suit does not end until the property has been brought to sale. Moreover, Section 2(2) makes a special reference to two sections of the Civil Procedure Code, orders under which, can be treated as decrees. It is most unlikely that the Legislature would 'have both overlooked the possibility of a fall adjudication of the rights of the parties, under Order34, Rule 12 in the definition of Section 2(2), and have failed to provide for an appeal from an order passed under this rule deciding important rights. I have already said that I am satisfied that Order 34, Rule 12 does not contemplate an inquiry of this nature; but if it did, I should consider that an executing Court, whose primary duty it is to execute, would be exercising its discretion wrongly to go into a full inquiry into the claims of a person who is not a party to the suit in order that an order may be passed under Order 34, Rule 12 in his favour. In any event, therefore, the order of the lower Court was wrong and has to be set aside; and I am not prepared to order the Court to make a further inquiry into the petition. C.M.P. No. 44 of 1933 sis dismissed with costs and this Civil Revision Petition allowed with costs.
Appeal against Appellate Order
No. 98 of 1934
3. The appeal is not maintainable. It is therefore dismissed with costs.