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Kristomohiny Dossee Vs. Bama Churn Nag Chowdry and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal733
AppellantKristomohiny Dossee
RespondentBama Churn Nag Chowdry and ors.
Cases ReferredGambhirmal and Bana Chand v. Chejmal Jodhmal
Excerpt:
execution - mortgage--decree--stay of sale pending administration-suit--appealable order--civil procedure code (act x of 1877) section 244, clause. (c). - .....the property administered under the directions of the court, and they asked that the sale of the mortgaged property at the instance of the decree-holder, appellant, should be stayed until the final disposal of the administration-suit. the subordinate judge made an order staying the sale; and against that order this appeal has been preferred.2. a preliminary objection is first taken that no such appeal will lie. it appears to us, however, that this order, passed under section 243 of the present code, comes clearly within clause (c) of section 244, inasmuch as the question raised thereby is a question arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree. it is contended that this question does not really relate to the.....
Judgment:

Field, J.

1. The appellant in this case obtained, on the 25th May 1880, a decree on a mortgage-bond executed in his favour by Ram Goti Nag. The three sons of Ram Goti Nag were judgment-debtors under that decree, which directed that the mortgage lien should be enforced---first, by sale of the property specifically mortgaged; and secondly, if the mortgage-debt were not thereby satisfied, by the sale of the other property in the possession of the judgment-debtors. The decree-holder proceeded, in February 1881, to execute this decree against the properties specifically mortgaged; and, after the issue of the sale-notification, it appears that a petition was presented to the Court in which the execution-proceedings were pending by one of the sons of Ram Goti Nag. This petition was presented three days before the date on which the sale was to take place. The purport of the petition was this, that the three sons of Ram Goti Nag were disputing as to the respective shares of their father's property, and they had instituted an administration-suit in order to have the property administered under the directions of the Court, and they asked that the sale of the mortgaged property at the instance of the decree-holder, appellant, should be stayed until the final disposal of the administration-suit. The Subordinate Judge made an order staying the sale; and against that order this appeal has been preferred.

2. A preliminary objection is first taken that no such appeal will lie. It appears to us, however, that this order, passed under Section 243 of the present Code, comes clearly within Clause (c) of Section 244, inasmuch as the question raised thereby is a question arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree. It is contended that this question does not really relate to the execution of the decree, and in support of that argument the case of Gambhirmal and Bana Chand v. Chejmal Jodhmal (11 Bom. H. C. R. 151) has been quoted. Now, in the first place, there is a marked distinction between that case and the present case, in this, that Bama Chand, who was the assignee of the decree for costs, was not a party to the second suit there instituted; and West, J., observed,---'but a strictly literal interpretation of the words we have quoted would exclude Bama Chand from the operation of the section as not having been a party to the suit.' In the next place, we think that the arrangement of the present Code, and the difference between the language of the present Code as compared with the language used in the old Code, must make a material difference in the interpretation, and we entertain no doubt that the order now appealed against, which stays the execution of the decree for an indefinite time, and prevents a secured creditor from availing himself of the benefit of his security, is, according to all common sense, a question relating to the execution of the decree.

3. Then, as to the merits of the case, we entertain no doubt that the order appealed against ought not to have been made. The decree-holder is a secured creditor. He has obtained a decree upon a mortgage-bond, and that decree entitles him to realize the amount due to him from the property specifically hypothecated by that mortgage-bond. There is no reasonable ground for saying that, because the sons of Ram Goti Nag are disputing as to their shares in the property of their deceased father, a secured creditor is to be debarred from enforcing his security until that quarrel is determined. Under these circumstances, we think that the order of the Subordinate Judge must be set aside, and this appeal decreed with costs.


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