Skip to content


Sarat Chandra Ghatak and anr. Vs. Joy Sankar Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal546
AppellantSarat Chandra Ghatak and anr.
RespondentJoy Sankar Roy Choudhury and ors.
Excerpt:
- .....1924. from this decree an appeal was taken by the plaintiffs to this court. this court varied the decree appealed from and so far as defendants 1 to 5 were concerned it passed an instalment mortgage decree against those defendants for rs. 24,000 in accordance with the solenama but only in respect of the properties which ware in the possession of those defendants and not in respect of the properties which had passed into the hands of the other defendants. this court also ordered that the suit as against defendants 16 to 20 would stand dismissed but as against defendants (6 to 15 it held that certain inquiries were to be made by the court below and thereafter a mortgage decree would -be passed on the footing that so far as they were concerned the value of the suit was rs. 3,000.4. we are.....
Judgment:

1. This is an appeal from an order passed by the Subordinate Judge, third Court, Mymensingh, refusing to set aside an execution sale, The appeal has been preferred by two of the judgment-debtors, namely, judgment-debtors 3 and 4. For a proper appreciation of the contentions that have been urged in connexion with this appeal, it is necessary to follow the facts a little closely. The decree-holder's opposite parties instituted a suit for recovery of Rs. 27,000 add on account of a mortgage bond dated 11323. They impleaded in the suit twenty persons as defendants of whom the first five were the original mortgagors and the rest ware persons who had acquired interest in the equity of redemption. When the suit was pending in the trial Court a compromise was entered into between the plaintiffs on the one hand and defendants 1 to 5 on the other.

2. The other defendants in the suit were not parties to this compromise. The terms of this compromise that are relevant at the present stage were that the plaintiffs would get a mortgage decree for Rs. 24,000, that in default of payment of any two successive kists (there having been certain instalments provided for in the compromise for payment of Rupees 24,000) all the remaining kists should be deemed to be in default and the plaintiffs should at once be entitled to realize the entire amount with interest and that the decree that was to be passed in the compromise was to be regarded as the final decree in the case so that before executing the decree it would not be necessary for the plaintiffs to obtain another decree in the nature of a final decree. A decree was passed on the basis of this compromise but not exactly in accordance therewith.

3. The suit as against the remaining defendants was dismissed and a money decree only as against defendants 1 to 5 was passed by the Subordinate Judge. This decree is dated 7th July 1924. From this decree an appeal was taken by the plaintiffs to this Court. This Court varied the decree appealed from and so far as defendants 1 to 5 were concerned it passed an instalment mortgage decree against those defendants for Rs. 24,000 in accordance with the solenama but only in respect of the properties which ware in the possession of those defendants and not in respect of the properties which had passed into the hands of the other defendants. This Court also ordered that the suit as against defendants 16 to 20 would stand dismissed but as against defendants (6 to 15 it held that certain inquiries were to be made by the Court below and thereafter a mortgage decree would -be passed on the footing that so far as they were concerned the value of the suit was Rs. 3,000.

4. We are not really concerned with what was done by this Court as regards the appeal in so far as it was against the defendants other than defendants 1 to 5 and it would be sufficient to say that after the decree of this Court, there was a further investigation by the Court below and a preliminary decree as against defendants 6 to 15 was passed on 6th August 1927 and thereafter a final decree for sale was also passed on 15th November 1927. In the meantime, on 3rd February 1928, the decree-holders applied for execution of the decree that they had obtained as against defendants 1 to 5. In the execution proceedings that were started as aforesaid, the sale of the properties concerned took place on 10th August 1908. At the sale the proper-ties' fetched a sum of Rs. 7,000 odd and the appellants' case is that they were valued considerably over that amount and upon the finding of the Court below it appears that in any event their value would not be anything less than Rupees 18,000. In these circumstances, on 14th September 1928, the appellants before us, namely judgment-debtors 3 and 4 applied for setting aside the sale. Their application read as a whole was framed not merely as one under Order 21, Rule 90 of the Code but also as one falling within the purview of Section 47. As already stated it was dismissed by the Court below.

5. In the appeal before us one of the contentions that has been urged with very great ability and ingenuity relates to the question of limitation, The argument is of a threefold character. In the first place it has been contended that the application for execution was barred by limitation inasmuch as it was filed more than three years beyond the date of the decree passed by the Subordinate Judge, that is to say, 7th July 1924, though undoubtedly it was made within three years of the High Court's decree dated 10th May 1926. The obvious answer to this contention is that, in point of fact it was an application for execution of the decree passed by this Court as against defendants 1 to 5. To get over the decree of this Court however two contentions have been put forward. It has been urged that the decree of the Subordinate Judge dated 7th July 1921 was a consent decree and from that consent decree no appeal lay under the law. The contention in our opinion is not well-founded firstly, for the reason that in point of fact an appeal was preferred from this decree and was dealt with by this Court and even if this Court erroneously dealt with the appeal supposing 'that the appeal lay where the law did not allow an appeal, the validity of the appellate decree passed by this Court; in lour opinion, could not be challenged in 'execution proceedings.

6. It has now been settled by a Full 'Bench of this Court that an execution Court can only go into the question of the validity of the decree [which is before it for execution upon questions of jurisdiction, meaning thereby pecuniary, territorial or personal jurisdiction, and in our opinion the question as to whether the appeal before this Court is competent or not upon the grounds upon which the validity of the decree of this Court has been challenged is not a question which could be gone into in the execution proceedings. The other answer to this contention is that the decree of the Subordinate Judge although purporting to be one based upon the compromise was not exactly in accordance with the compromise and in those circumstances an appeal undoubtedly would lie from the decree so passed. For these reasons, we hold that it is the decree of this Court dated 10th May 1926 which was the decree to be executed in the present case and inasmuch as; the application for execution was made within time calculated from the date of that decree this contention on the question of limitation should be overruled.

7. The other branch of the contention relating to the question of limitation is based upon the fact that there was no final decree prepared in the mortgage; suit in so far as it was as against defendants 1 to 5. When reciting the terms of the solenama we have already stated that one of those terms was that if a decree was to be passed upon the sole nama, it should be regarded as the final decree and it would not be necessary for the plaintiffs to obtain another final decree prepared before they were to apply for its execution. The decree of this Court specifically stated that the instalment mortgage decree was passed against defendants 1 to 5 for Rs. 24,000 in accordance with the terms of the solenama. There was no necessity therefore in the present case to have another decree prepared. In fact the decree which this Court passed on 10th May 1926 was one perfectly capable of execution.

8. The question of limitation has also been pressed upon the ground that according to the instalments provided for in the solenama the first instalment of Rs. 550 was to be paid in Falgoon 1330 and the second instalment of Rs. 1,200 was to be paid in Aswin 1331 but that. there was default in the payment of both these instalments and it was only in Falgoon that the sum of Rs. 500 was paid, and upon these facts the contention that has been urged is that according to the terms of the solenama, on default of the aforesaid two instalments the entire amount became due and therefore time should run from that date. That undoubtedly was the provision made in the solenama but then it was not until a decree was passed on the basis of the solenama that the right to realize the instalments accrued to the plaintiffs and it was on 10th May 1926 when this Court made a decree that that right accrued. The application for execution of the en-tire decree made within three years from the date of the High Court decree therefore, is in our opinion perfectly maintainable.

9. On the merits it has been urged that there was material irregularity in publishing and conducting the sale and inasmuch as the Subordinate Judge has found that the price fetched was inadequate, we should set it aside. The evidence bearing upon this question has been placed before us and it appears that the appellants on whom undoubtedly the burden lies of establishing material irregularity have been able to give only evidence of a negative character and of the vaguest possible description. The learned Subordinate Judge in his judgment has gone very fully into evidence and his discussion of it amply shows that there was no irregularity far less any material irregularity which can be taken to have vitiated the sale.

10. A special point was made as regards the service of the notice under Order 21, Rule 22 of the Code upon defendant 4. Defendant 4 appears to be a pleader who practises at Pingna and resides there for the purpose of practice. The service was effected as appears from the peon's return, by tendering a copy of the notice to a brother of his, defendant 3, who is an adult and was living in the joint family dwelling house and when he refused to accept the copy of the notice so tendered it was served by affixing it on the outer door of the Cutchery ghar in the outer apartment. There is evidence that although the pleader, defendant 4, remains at Pingna for the purpose of practice, he goes home from time to time. In those circumstances, the service of notice at the joint family dwelling house by putting it up on the outer door of the house was in our opinion sufficient.

11. On the whole we are of opinion that the contention urged in this appeal cannot be allowed to succeed. The appeal fails and must be dismissed with costs, hearing-fee two gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //