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Chandayya Shetty and anr. Vs. Bijoor Venkappa Maiya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad598
AppellantChandayya Shetty and anr.
RespondentBijoor Venkappa Maiya and anr.
Excerpt:
- - the view of the lower appellate court is clearly wrong, and indeed it may be said that it was not the court which passed the decree that acted without jurisdiction, but the lower appellate court itself which acted without jurisdiction in allowing the correctness of the decree to be questioned in execution and in declaring it to be wrong......overruled by the executing court i.e. the district munsif of kandapur, on the ground that as the decree sought to be executed gave a personal remedy against defendant 1 along with the right to sell the mortgage property, there vias no basis for the objection. on appeal however the learned subordinate judge took a different view, being of the opinion that the decree sought to be executed which allowed both these remedies was a decree passed without jurisdiction, and accordingly allowed the appeal and set aside the order of the district munsif directing the sale of the other properties of defendant 1 in execution.2. the decree-holder assignee has instituted this appeal, and the only point urged in this appeal on his behalf is that the lower appellate court's view is wrong, and that the.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the Additional Subordinate Judge of South Kanara, dated 4th July 1929 setting aside in appeal the order of the District Munsif of Kandapur, dated 14th March 1927 in execution proceedings in 0, Section No. 838 of 1913. The decree in that suit which was brought on the foot of a registered mortgage deed was briefly to the effect that the plaintiff do recover from defendant 1 personally and by the sale of defendant Is' interest only in the property mortgaged to the plaintiff under the suit mortgage subject to certain other mortgages. The decree-holder assignee sought in execution to arrest defendant 1 and also to proceed against his other properties, by way of attachment and sale. Defendant 1 objected that the decree could not be executed against his other properties as the petitioner had not proceeded against the mortgage properties. This objection was overruled by the executing Court i.e. the District Munsif of Kandapur, on the ground that as the decree sought to be executed gave a personal remedy against defendant 1 along with the right to sell the mortgage property, there vias no basis for the objection. On appeal however the learned Subordinate Judge took a different view, being of the opinion that the decree sought to be executed which allowed both these remedies was a decree passed without jurisdiction, and accordingly allowed the appeal and set aside the order of the District Munsif directing the sale of the other properties of defendant 1 in execution.

2. The decree-holder assignee has instituted this appeal, and the only point urged in this appeal on his behalf is that the lower appellate Court's view is wrong, and that the correctness of the decree in question cannot be questioned in execution by the executing Court. It is not contended however that the decree is quite in accordance with the provisions of law relating to the drafting of decrees in mortgage suits, but the main argument is that, even assuming the decree is not quite in accordance with law, this matter cannot be agitated at all in the executing Court in execution proceedings and that as the decree however erroneous it might have been, was net appealed from and has become final, the executing Court has no option but to execute it as it stands. There can be no doubt that the decree in question as it stands does give both remedies simultaneously to the decree-holder. The Executing Court has power only to decide questions relating to the execution, discharge or satisfaction of the decree sought to be executed. It cannot decide other matters and cannot certainly question the correctness or propriety of the decree sought to be executed, or as is Hordarily put, the executing Court cannot go behind the decree. This is not a case Sin which it can be said that the decree sought to be executed is wholly without jurisdiction. All that can be said is that it was not in accordance with the provisions of law prescribing the form of I decree to be passed in mortgage suits, and that the decree was wrongly drafted by the Court which passed it. The only '; remedy available to defendant 1 in this case was by way of appeal if he wanted to correct what was not right in the decree. He did not choose to adopt this remedy and the decree has become final. He cannot be permitted to agitate the same matter in execution proceedings. The view of the lower appellate Court is clearly wrong, and indeed it may be said that it was not the Court which passed the decree that acted without jurisdiction, but the lower appellate Court itself which acted without jurisdiction in allowing the correctness of the decree to be questioned in execution and in declaring it to be wrong. The appeal therefore is allowed with costs.


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