Skip to content


Satish Mohini Debya and ors. Vs. Pabna Bank Limited - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.907
AppellantSatish Mohini Debya and ors.
RespondentPabna Bank Limited
Excerpt:
mortgage decree, whether can be executed against some owners of equity of redemption - limitation, act (ix of 1908), section 15--execution of decree--limitation, suspension of, while case struck off. - .....the widow, of a deceased judgment-debtor against the order of the learned first subordinate judge of pabna, dated the 10th july 1916, directing execution to issue in respect of a certain decree. the matter is an extremely simple one if we take the material facts and confine our attention to them. the husband of the appellant was a party to a mortgage in favour of an institution called the pabna bank, limited which is a financial institution, i am told, constituted of th0e local lawyers practising at pabna. that mortgage was dated the 16th june 1908. it is stated that nine days before the mortgage, the husband of the appellant, that is the judgment debtor basant kumar roy, executed a deed of gift of one of the properties in the town of pabna in' favour of his wife, the present.....
Judgment:

Fletcher, J.

1. This is an appeal by the representative, the widow, of a deceased judgment-debtor against the order of the learned first Subordinate Judge of Pabna, dated the 10th July 1916, directing execution to issue in respect of a certain decree. The matter is an extremely simple one if we take the material facts and confine our attention to them. The husband of the appellant was a party to a mortgage in favour of an institution called the Pabna Bank, Limited which is a financial institution, I am told, constituted of th0e local lawyers practising at Pabna. That mortgage was dated the 16th June 1908. It is stated that nine days before the mortgage, the husband of the appellant, that is the judgment debtor Basant Kumar Roy, executed a deed of gift of one of the properties in the town of Pabna in' favour of his wife, the present applicant. Be that as it may, the Pabna Bank, Limited, instituted in the year 1908 a suit on their mortgage. They obtained a decree on the 15th February 1909, and the order absolute for sale was made on the 25th November of the same year. Subsequently, the defendants Nos. 2, 3 and 4 took further proceedings in. the matter. The case came up to the High Court. The decree as against the defendants NOS. 2, 3 and 4 was set aside and the case was ordered to be retried. But the decree and the order absolute for sale as against the other defendants were not interfered with. In the meantime, on the 27th May 1913, an application was made for execution as against the defendants other than the defendants Nos. 2, 3 and 4. It is quite obvious that a mortgage decree cannot be executed against some of the owners of the equity of redemption, and the learned Judge to whom the application for execution was made said that he was not going on with that case until the liability of the defendants Nos. 2, 3 and 4 had been finally settled. This was clearly a proper order. In the result the case was tried against the defendants Nos. 2, 3 and 4. It was decreed on the 6th February 1915 by a preliminary decree and the final decree was passed on the 27th September 1915. Then comes the present application.

2. The point made is that the decree-holders cannot execute the first decree because it is barred by limitation. That is quite clearly not so. Execution was clearly stayed by the order of the 27th May 1913. The Judge said that he declined to make any order in the execution case until the liability of the defendants Nos. 2, 3 and 4 was finally settled and he struck off, as he stated in his order, the execution case for the present. What could a party do then when the Judge said that until the liability of the defendants Nos. 2 3, and 4 was settled, he declined to issue execution? As a matter of fact, the learned Judge was quite right. It is quite impossible to execute a decree in a mortgage suit in the way it was suggested. If that is so, then limitation did not begin to run until the liability of the defendants Nos. 2, 3 and 4 was finally settled; and that was done on the 27th September 1915. In that view, the case was clearly within time and no point can possibly be raised as against the present application on the ground of limitation. Dr. Mitter who appears for the appellant did not make a point as to whether the tabular statement did or did, not comply with the terms of Order XXI, Rule 11, Code of Civil Procedure, That matter seems to be dealt with by the learned Judge of the Court below. If necessary, it is only a matter of amendment and amendment can easily be made. The decree was passed in 1909 against the defendants other than the defendants Nos. 2, 3 and 4 and the decree passed against the defendants Nos. 2, 3 and 4 on the 6th February 1915 was made absolute on the 27th September of the same year. Under and by virtue of those decrees, the mortgagees, the Bank, are entitled to have the property brought to sale and the proceeds dealt with in accordance with the terms thereof. The real point that Dr. Mitter has raised in the present appeal is the question of fraud and various charges of a similar nature made against the. Pabna Bank in the Court below. That question obviously cannot be gone into in a matter of this nature. This is an application to execute certain decrees that have been passed and are found to be binding. So long as those decrees remain undisturbed, it is Quite clear that it cannot be said that execution ought not to issue because they were obtained by some improper means. Those decrees, as long as they stand, obviously must be treated as decrees binding on the parties, and are liable to be executed. In my opinion, the learned Judge of the Court below came to a correct conclusion when he directed execution to issue in this case, In that view, the present appeal fails and must be dismissed with costs. We assess the bearing fee at one hundred rupees.

Syed Shamsul Huda, J

3. I agree.


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