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Sita Nath Saha Bonik Vs. Madan Mohon Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.22
AppellantSita Nath Saha Bonik
RespondentMadan Mohon Das
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 5 - mortgage suit, decree in--execution--receiver, appointment of--court power of. - .....case is in a suit to enforce a mortgage. that means that there has open an execution case in a mortgage suit with regard to the final decree and, under the terms of the law in the country, the form of the decree passed in a mortgage suit is a statutory form which the court must pass when the plaintiff succeeds in the mortgage suit. in this case, the decree provides that the property shall be brought to sale the judgment debtor now comes and asks that the property shall not be brought to sale, and the reason for which he says he does not want the property to be brought to sale is that in some other suit in which several other creditors sued him, he got a receiver appointed of his properties and that he would rather that this property should be taken charge of by the same gentleman who.....
Judgment:

Fletcher, J.

1. This is an appeal by the judgment-debtor against an order of the learned first Subordinate Judge of Sylhet, dated the 7th September 1915. The appeal is a novel one. So far as I know, there is no authority to support the case. The appeal arises out of what is called an execution ease and the execution case is in a suit to enforce a mortgage. That means that there has open an execution case in a mortgage suit with regard to the final decree and, under the terms of the law in the country, the form of the decree passed in a mortgage suit is a statutory form which the Court must pass when the plaintiff succeeds in the mortgage suit. In this case, the decree provides that the property shall be brought to sale The judgment debtor now comes and asks that the property shall not be brought to sale, and the reason for which he says he does not want the property to be brought to sale is that in some other suit in which several other creditors sued him, he got a Receiver appointed of his properties and that he would rather that this property should be taken charge of by the same gentleman who has been appointed the Receiver than that it should be brought to sale in the ordinary course by the Court. No case is shown where, at the instance of the mortgagor, the mortgagee's rights under the decree have been interfered with by the Appellate Court in any way either by intercepting the rents and profits or by restraining the sale of the property. If the judgment-debtor be in a position to pay off the amount due on the mortgage at any time prior to the actual sale, the law provides for the re-opening of the foreclosure and the acceptance of the money. If that is what the judgment-debtor has in his mind it is perfectly simple to him either himself or through some of these other creditors who are acting with him to apply to the Court to re-open the foreclosure, notwithstanding the length of time that has elapsed, upon payment of all money that now remains due to the decree-holder. The present application is a wholly novel application and one that I think ought not to be assented to. The case of equitable execution bears no relation at all to the present case. The method in which the execution is to take place is provided for by the final decree. That cannot be altered at the instance of the judgment-debtor and to the prejudice of the decree-holder. I think the present appeal fails and must be dismissed with costs, five gold mohurs.

Chatterjea, J.

2. I agree.


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