1. Three persons, Golok Chandra Bezbarua, Ananda Chandra Bezbarua and Jogeswar Bezbarua, executed a mortgage on 29th May 1925 in favour of Planters Stores and Agency Co. Ltd. The said company instituted against the said three persons a suit to enforce their mortgage. A preliminary decree was passed on 30th August 1930 and the final decree on 16th April 1931. The final decree was for a sum over Rupees 30,000. In 1934, the said company put their decree into execution, but nothing came out of those execution proceedings. On 8th October 1934, one of the judgment-debtors, Jogeswar, sold his share in the mortgaged properties to C.K. Bezbarua who is the appellant before us. A year after, the company again applied for execution, and it was numbered as Execution Case No. 70 of 1935. During the pendency of this execution case, or it may be even before the execution was started, moneys were paid on behalf of the judgment-debtors to the company in part satisfaction of their decree with the result that a sum of Rs. 23,000 or so was due on the decree. During the pendency of this execution case, the company transferred for a consideration of Rs. 3385, the decree to C.K. Bezbarua who had already purchased the share of Jogeswar. On 17th November 1936, C.K. Bezbarua made an application to the executing Court under the provisions of Order 21, Rule 16. The usual notices were issued both upon the decree-holder, the company and also on the three judgment-debtors. Ultimately, C.K. Bezbarua was substituted in place of the company in Execution Case No. 70 of 1935 and was allowed to proceed on with the execution.
2. After the substitution, the other two judgment-debtors Golok and Ananda filed an objection under Section 47, Civil P.C. The material points raised in their petition of objection were (1) that the execution proceedings could not proceed at the instance of C.K. Bezbarua by reason of Proviso 2 to Order 21, Rule 16 of the Code; (2) that as the share of Jogeswar was one-third and as he was bound to pay a third of the balance of the mortgage decree then due, in any event C.K. Bezbarua could not proceed to execute the whole decree; and (3) that C.K. Bezbarua could only recover in execution not two-thirds of the balance of the decree, but only two-thirds of Rs. 3385, the money which he paid to the company for satisfying the latter. It is not necessary to deal with the second ground, because both, the pleader of C.K. Bezbarua in the lower Court and his Advocate, Mr. Gupta in this Court have said that to avoid multiplicity of proceedings, their client will execute for two-thirds of the balance due on the mortgage decree. The first and the third points are therefore the only points for consideration. It seems that in the lower Court, the first point was not pressed on behalf of the judgment-debtors; but the third point was pressed seriously and the lower Court has given effect to the judgment-debtors' said objection.
3. Mr. Sanyal for the judgment-debtors does not seek to support all the reasons given by the Subordinate Judge in his order, but he says that the order is right inasmuch as it can be supported on the basis of Section 95, T.P. Act, as it stood before the amendment of 1929. He also presses the first of the aforesaid objections. With regard to the first objection we do not think that it is a sound one. So far as this Court is concerned, the phrase 'decree for the payment of money' occurring in the second proviso to Order 21, Rule 16, has been held not to include a decree for sale passed in a mortgage suit. There is therefore no bar to C.K. Bezbarua's proceeding on with the execution, although before the assignment of the decree in his favour, he had acquired interest of one of the judgment-debtors, and the property in his hands was liable to be sold in execution thereof.
4. The third point requires consideration. Mr. Sanyal's argument is that although the document executed by the Company in favour of C.K. Bezbarua was in the form of an assignment of the decree, in substance it was not so. He says that the substance of the matter is this: that by the payment of Rupees 3385 by C.K. Bezbarua, who had at the time of payment acquired an interest in the equity of redemption, the decree in favour of the Company was satisfied, that is to say, on receipt of the said amount, the Company gave up their claim to the balance. C.K. Bezbarua therefore can only recover from the other two judgment-debtors a share of this sum of Rs. 3385 and not a share of Rs. 23,000 odd which was the balance due on that date. He supports this contention in the following manner. He says that inasmuch as the mortgage was executed before the amendment of Section 95, T.P. Act, in 1929, the rights of the parties must be governed by the law as it stood before 1929, that is to say the rights of the parties must be regulated by Section 95 of the said Act before it was amended. He further says that the word 'redeems' used in the said section must be given a wider meaning. That section will govern, says he, the rights of the co-mortgagors even when one of them had discharged the decree on the mortgage, even after the final decree for sale had been passed. In support of this contention, he cites the following cases: Mohammad Fariduddin v. Nand Ram : AIR1927All626 , Dhakeswar Prosad Singh v. Harihar Prosad Narain Singh (1915) 2 A.I.R. Cal. 759, Alam Ali v. beni Charan : AIR1936All33 and Danappa v. Yamnappa (1902) 26 Bom. 379. In our judgment, it is not necessary to consider the said two contentions because we are of opinion that the rights of the parties cannot be determined in the execution proceedings, but must be left for determination in a proper suit for contribution. Inasmuch as the decree for sale passed in the mortgage suit is not a decree for payment of money, within the second proviso of Order 21, Rule 16, C.K. Bezbarua is entitled to proceed with the execution of the decree, as the matter comes within the enactment in Order 21, Rule 16. As the assignee of the decree, he stands in the shoes of the Company decree-holder. The judgment-debtors can urge against him all the equities which they could have urged against the Company (Section 49 of the Code). He can execute the decree in the same manner, and subject to the same conditions on which the Company could have executed the decree. In effect, C.K. Bezbarua must be considered for the purpose of the execution, the same person as the Company. Any objection to the execution which could not have been urged by the judgment-debtors against the Company, cannot be urged against C.K. Bezbarua, the assignee of the decree-holder Company.
5. In this view of the matter, we think that C.K. Bezbarua, on the basis of his assignment, can execute for the whole of the balance, and can put up the mortgaged properties for sale, but inasmuch as his learned Advocate here and his pleader in the Court below have taken the position that he would execute only for the two-thirds of the amount due, we must limit his claim to that amount. We have held that the objection based on Section 95, T.P. Act, is not an objection which can be gone into in the execution proceedings. Accordingly, it would be open to the parties to litigate about their rights, either based on that section or on some other equities, in a properly constituted suit. All we have held is that those questions cannot be gone into in these execution proceedings. This disposes of this appeal. The order made by the learned Subordinate Judge must be discharged, and C.K. Bezbarua must have the right to proceed with the execution for recovery of two-thirds of the balance due on the mortgage decree.
6. It appears that there is a partition suit pending in which Golok Ananda Jogeswar and C.K. Bezbarua are parties and a Receiver has been appointed in that suit. It further appears that in 1935 and 1936 the said Receiver paid substantial sums of money (Rs. 11,000, odd and Rs. 15,000 odd) to the mortgagee decree-holder Company by sale of the export quota rights. In 1937 and 1938 there were sales of the export quota rights but we are not in a position to say for what sums of money these export quota rights were sold. It is also stated to us, but we cannot vouch for that statement, as that statement is not admitted by the judgment-debtors' advocate that by reason of the objections raised in these execution proceedings, after C.K. Bezbarua was substituted in place of the original decree-holder, no further payment had been made by the Receiver, as there were disputes as to; the amount which C.K. Bezbarua could recover. Those disputes have now been settled by our order in which we have held that C.K. Bezbarua is entitled to proceed with the execution of the realization of two-thirds, of the balance of the decretal amount. Mr. Sanyal says that the export quota rights for the year 1939 will in the ordinary course, be sold in April or May following, and after the sale of the export quota rights, the Receiver will be in a position to pay a substantial amount towards the reduction of the claim of C.K. Bezbarua. In these circumstances, he prays that the sale of the shares of Golok Chandra Bezbarua and Ananda Chandra Bezbarua, in the Tea garden may be stayed by us for two months. As we are not in a position to say when the export quota rights will be available for sale, and are not in possession of other material facts, we cannot accede to this prayer at this stage. But the refusal of the said prayer by us should not be taken to mean that the judgment-debtors would have no right to make a similar application to the lower Court. If such an application is made, the Court below will consider that application on the merits and exercise its discretion. We are quite sure that the lower Court will not be prejudiced by the fact that we have refused the said application. The cross-objection is dismissed but without costs. There will be no order for costs up to this stage, both here and below.