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Sitanath Shah Banik Vs. Madan Mohan Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.904
AppellantSitanath Shah Banik
RespondentMadan Mohan Das
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 6 - mortgage, suit on--preliminary decree, declaring that if sale-proceeds prove insufficient mortgagor shall be liable for balance, nature of--final decree, whether necessary. - .....sold in execution of the decree and succeeded in getting such a declaration in the presence of the decree-holder and the judgment-debtor. there upon the decree-holder applied to proceed against the other properties of, the judgment-debtor, but the court asked him to make an application under order xxxiv, rule 6. he made such an application, but he was absent when it was taken up for disposal and it was rejected. the decree-holder afterwards made the present application under order xxxiv, rule 6, and this application has given rise to this appeal, the judgment debtor being the appellant before us.3. the points raised are, first, that the preliminary decree to which i have already referred was a composite decree which, enabled the decree-bolder to proceed against, the other properties of.....
Judgment:

Syed Shamsul Huda, J.

1. The faots are shortly these. The plaintiff decree-holder instituted a suit to enforce a mortgage-bond. A decree was passed for the sale of the mortgaged property and there was a further direction that if the whole amount was not realised by the sale of the mortgaged property for the rest of the claim, if legally realisable, the defendant No. 1 would be liable.

2. It appears that after this decree was obtained and before the mortgaged properties could be sold, a third party brought a suit for, a declaration that the mortgaged property could not be sold in execution of the decree and succeeded in getting such a declaration in the presence of the decree-holder and the judgment-debtor. There upon the decree-holder applied to proceed against the other properties of, the judgment-debtor, but the Court asked him to make an application under Order XXXIV, Rule 6. He made such an application, but he was absent when it was taken up for disposal and it was rejected. The decree-holder afterwards made the present application under Order XXXIV, Rule 6, and this application has given rise to this appeal, the judgment debtor being the appellant before us.

3. The points raised are, first, that the preliminary decree to which I have already referred was a composite decree which, enabled the decree-bolder to proceed against, the other properties of the judgment-debtor without a fresh decree obtained under Order XXXIV, Rule 6, and that, therefore, he is not entitled to a fresh decree, secondly, it is argued that the previous application for a decree under Order XXXIV, Rule 6, being rejected, the decree-holder cannot, make a second application for such a decree.

4. As regards the second point, it seems to me that this not being a point which is raised in the grounds of appeal we ought not to allow the learned Vakil for the appellant to raise it, and there is another, reason why he should not be allowed to raised the point and that is this; several points, and this was one of them, were raised in the lower Appellate Court but were Abandoned at the hearing of the appeal. The only question, therefore, which I need consider is the question whether the decree-holder is entitled to a fresh decree. I think he is so entitled. In the first place, the preliminary decree was not a composite decree allowing the decree holder to proceed against the other properties of the judgment debtor. It says that he may proceed if he were legally entitled to do so, thus leaving it for future decision whether the decree-holder was legally entitled to obtain such a decree. It seams to me that although the language of the decree may be somewhat unfortunate, it was intended only to give leave to the decree-holder to apply for a personal decree for the amount of the balance. It has also been pointed out to us by the learned Vakil for the respondent that in the final decree that was passed there was no provision for any personal decree.

5. I, therefore, think that the decree passed, by the Court below is correct and this appeal should be dismissed with costs.

Walmsley, J.

6. I agree.


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