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Abul Hasmat Ahamad Vs. Hrishikesh Das and ors. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal1048
AppellantAbul Hasmat Ahamad
RespondentHrishikesh Das and ors.
Cases Referred and Nafar Chunder Mundul v. Baikanto Nath Roy
Excerpt:
- .....or so much thereof as may be necessary ' be sold by public auction.' on the 5th december 1923, the decree-holder applied for execution of this decree. in that execution petition all the defendants were mentioned as judgment-debtors. including defendants nos. 3 to 8, execution was sought against all the defendants, and it was prayed that the mortgaged properties in the schedule attached thereto be sold and the claim of the decree-holder paid out of the sale-proceeds. to this execution proceeding the appellant took several objections which will be referred to later. on the 29th april 1924, the learned subordinate judge overruled those objections and ordered the sale of the properties. against that order an appeal was taken to this court (being appeal from original order no. 149 of 1924);.....
Judgment:

1. This appeal arises out of execution proceedings in connection with a mortgage-decree obtained by the respondent against the appellant and some others. It is necessary to narrate briefly the history of this litigation in order to appreciate the points which have been urged before us.

2. The Defendant No. 1 mortgaged several items of property on the 14th June 1915 for a loan of Rs. 2,15,000. After the mortgage he made a gift of the residential house (one of the items of properties mortgaged) to his son, Defendant No. 2, who is the appellant in this appeal. He also created several mirasis in favour of Defendants Nos. 3 to 8. The plaintiff brought a suit on his mortgage against the original mortgagor, Defendant No. 1, and the other defendants as transferees from him since the mortgage. An application was made by the plaintiff in the suit for the appointment of a Receiver which was dismissed by the trial Court. An appeal was preferred to this Court against that order and at one stage of the appeal notices were not properly served upon the Defendants Nos. 3 to 8; and the plaintiff, by an application abandoned the appeal at his own risk against those respondents. The appeal was subsequently compromised between the plaintiff and Defendants Nos. 1 and 2, the appeal having been withdrawn as against the other defendants. The order passed on the compromise was to the following effect: ' It is ordered that the suit be decreed by the Court below after deducting the sum of Rs. 8,033 from the principal which, some of the defendants pleaded, had not been received by them; and the usual mortgage-decree will be drawn up by the lower Court and the defendants will be allowed four months time to pay the amount so found duo to the plaintiff from the date on which the amount is so ascertained. If after the expiry of the said period the defendants fail to pay the amount, the preliminary decree will be made final.' The amount was subsequently ascertained at Rs. 3,59,925 10-0. In pursuance of this consent order by this Court a preliminary decree was drawn up by the Court below on the 16th June 1923 in which defendant No. 1 was described as the principal defendant and Defendants Nos. 2 to 8 were described as pro forma defendants. It may be useful to quote a portion of the decree to show its nature. ' The suit being brought up to-day by consent for preliminary decision by order of the Hon'ble High Court, dated the 13th March 1923, in the presence of the vakils for the Defendants Nos. 1 and 2 and in the absence of defendants Nos. 3 to 8, it is ordered and decreed that by consent of both the parties this suit be preliminarily decreed in part with proportionate costs, etc The defendants Nos. 1 and 2 do pay to the plaintiff, within four months from this day, the balance amounting to Rs. 3,55,925-10-0 and proportionate costs, and in default the decree be duly made absolute; and the decretal amount be realized thereafter by the sale of the mortgaged properties or a sufficient portion thereof.' The money not having been paid within the time allowed, the final decree was drawn up on the 17th November 1923. In that decree also all the eight defendants were made parties as in the preliminary decree. It states that it appearing that the amount, declared due by the preliminary decree has not been paid, it is ordered that the immovable properties mentioned in the said decree and specified at the foot thereof, or so much thereof as may be necessary ' be sold by public auction.' On the 5th December 1923, the decree-holder applied for execution of this decree. In that execution petition all the defendants were mentioned as judgment-debtors. Including Defendants Nos. 3 to 8, execution was sought against all the defendants, and it was prayed that the mortgaged properties in the schedule attached thereto be sold and the claim of the decree-holder paid out of the sale-proceeds. To this execution proceeding the appellant took several objections which will be referred to later. On the 29th April 1924, the learned Subordinate Judge overruled those objections and ordered the sale of the properties. Against that order an appeal was taken to this Court (being appeal from Original Order No. 149 of 1924); and before the hearing of the appeal the properties were sold; but as they did not fetch the upset price fixed by the Court it refused to accept the bids and ordered a re-sale of the properties. When that appeal came on for hearing before this Court, this circumstance was brought to the notice of the learned Judge whereupon the appeal was dismissed on the 20th May 1924; but all the matters raised in it were left open. The ground on which the appeal was dismissed was that the learned Subordinate Judge had ordered issue of fresh sale-proclamation and, therefore, the order under appeal had become vacated. The fresh sale-proclamation was issued and the 1st August was fixed for the sale. The Defendant No. 2 again renewed his objections before the execution Court, and they were again overruled by the learned Subordinate Judge by his order dated the 30th July 1924 which virtually upheld the order passed by the Judge on the 29th April 1924. Against this order the present appeal is preferred by defendant No. 2, and it is argued on his behalf, first, that the original decree being against all the eight defendants the decree-holder is not entitled to execute it against Defendants Nos. 1 and 2 alone without having it amended according to law; secondly, that the Court below was wrong in regarding the application for execution as having been amended by the petition filed by the decree-holder on the 5th May 1924. It is argued in this connection that under the law an application for execution cannot; be amended after it is admitted and registered. Thirdly, it is argued that if the decree-holder gives up his claim against some of the judgment-debtors in execution of the mortgage decree, the amount payable to the decree-holder must be apportioned and before such apportionment the decree cannot be executed. The first and the second points are so intermixed with each other that it will be desirable to treat them together. The objection is that the decree having been passed against eight defendants, the decree-holder is not entitled to take out execution only as regards two of them and give up his claim or express his intention not to proceed against the other defendants. As the decree is a joint mortgage-decree, it is indivisible and cannot be executed against some of the defendants. If the application made by the plaintiff giving up his claim against Defendants Nos. 3 to 8 is taken as an application for amendment of the execution petition, such amendment cannot be allowed and it is against the law. Now the preliminary decree was, no doubt, passed against all the defendants. The question, therefore, arises as to whether the plaintiff is entitled to proceed in execution against two of these defendants. The history of this case which we have related above, will show that so far back as the 13th March 1923, Defendants Nos. 1 and 2 both took upon themselves the liability for the entire amount and the Defendant No. 2 also undertook to pay the amount within a certain time and if he failed to do so he agreed that the mortgaged properties would be sold. The other defendants did not appear in the suit or at the time when it was compromised, nor was the mortgage-bond proved in their presence. The money not having been paid in time, the decree-holder wants to sell the mortgaged properties in terms of the compromise. He has not given up his claim against any of the defendants. What the decree-holder wants in this proceeding is to sell the properties as they stood at the date of the mortgage. The defendant No. 1 is really the person against whom the mortgage-decree was passed and upon whose failure to pay the decretal amount within the time allowed the execution was directed to proceed against those properties as they stood at the time of the mortgage. The question of amendment under these circumstances hardly arises. In the first place, the decree-holder has nowhere asked for the amendment of the application for execution. In his petition, dated the 5th May 1924, he simply notifies to the Court that the sale of the properties would not affect the mirasi right or interest of defendants Nos. 3 to 8. He makes no further prayer in that application. On the authority of the Full Bench in Asgar Ali v. Troilokya Nath Ghose (1890) 17 Cal. 631 (F.B.) it can be maintained that no amendment of execution petition should be allowed after it has been registered. But the present case is not a case of amendment after registration of the petition for execution. Then again, there is no order by the Court upon this petition the effect of which is to amend the petition of objection by removing the names of Defendants Nos. 3 to 8 from it.

3. The most important question that has been raised in this case is the question of apportionment. It is argued that the decree-holder having given up his claim as against Defendants Nos. 3 to 8 cannot proceed to take out execution of the entire decretal amount against the other defendants; but there should be an apportionment of the charge on all the properties and the amount which the decree-holder is entitled to recover from the defendant No. 2 ascertained, before execution can proceed. Several authorities have been cited before us in support of this contention. But they do not support exactly what the learned Vakil for the appellant contends for. Reference is made to the cases of Hari Kissen Bhagat v. Velait Hossein [1903] 30 Cal. 755 and Imam Ali v. Baij Nath Ram Sahu [1906] 33 Cal. 613 as authorities for the proposition that where a mortgagee gives up or releases any person interested in the equity of redemption in respect of a portion of the mortgaged properties or where the effect of his conduct is to cause such release, there ought to be an apportionment of the mortgage-debt and the mortgagee cannot recover more than what falls to the share of the properties not released. This proposition is unquestionably correct and supported by the authorities. But questions like these can be raised and decided in suits. The learned Counsel for the respondent contends that questions like the present cannot be agitated in execution proceedings; and in support of this proposition he has drawn our attention to the cases of Amir Chand v. Bukshi Sheo Pershad [1907] 34 Cal. 13 and Nafar Chunder Mundul v. Baikanto Nath Roy [18791 4 C.L.R. 156. We think that there is a great deal of force in the view urged by the respondent. The decree-holder is entitled to execute the decree as it stands. The executing Court is in law bound to execute the decree as it finds it and is not entitled to go behind it. The decree-holder, therefore, has the right to execute the decree against all the defendants. In the execution of the decree he may express his intention not to proceed against certain persons or certain property. It is the indisputable right of the mortgagee that he can, in order to release his dues, proceed against any property or any portion thereof inasmuch as his mortgage-debt extends to every bit of the property mortgaged. What the decree-holder has in this case sought is to execute the decree against all the defendants but to sell the interest of defendants Nos. 1 and 2. No authority has been cited before us that he is not entitled to do so; nor has any authority been placed before us in support of the contention of the appellant that the question of apportionment can be gone into in execution proceedings. Then, it is not clearly a case where the decree-holder has given up any claim in respect of the properties as against any defendant in the suit. The mortgagee seeks to sell the mortgaged properties in the state in which they were at the time of the mortgage. The effect of his applying not to proceed against the other defendant is to leave the question between himself and the subsequent transferees of the mortgaged properties open for future consideration. This may or may not to the result of his conduct, but that is what he wants to do. We may mention in this connection that under the mortgage-bond the defendant No. 1 bound himself not to grant any lease or under-tenure or to make any gifts of the mortgaged properties. He has not kept to his promise.

4. There is another matter which may be taken into consideration, viz., the defendant No. 1's conduct in this case. The learned Counsel for the respondent has rightly submitted that there is hardly any equity in his favour. He became a party to the consent order passed by this Court for the preliminary and the final decrees being passed in the form in which they were passed. One of the conditions was that if he failed to pay the money within a certain time the mortgaged properties would be sold. It would hardly lie in his mouth now to say that though he has not paid the money the properties should not be sold. The learned Counsel for the respondent rightly argues that by his conduct the judgment-debtor is debarred from raising the question. We do not think that the present defendant ought to be allowed to question the order of the Court below on the grounds raised before us. We, therefore, hold that this appeal fails and is dismissed with costs. We assess the hearing-fee at five gold mohurs.

5. We understand that a fresh sale-proclamation, in view of the events which have happened since the appeal was filed, has to be issued. We are also informed that the Receiver has sent a communication to the learned Judge that if a certain reasonable time is allowed he may pay off the dues of the decree-holder by privately selling a portion of the mortgaged properties and thereby save a portion of the properties of the judgment-debtors. If it is so, the learned Judge will take this matter into his consideration.


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