JAGANNATH PRASAD Vs. DAULAT RAM MANOCHA

JUDGEMENT

(1.) On 30/08/1948, the appellant executed a deed of mortgage with possession in respect of two houses in favour of the respondent to secure repayment of Rs. 15,000. 00. The property mortgaged remained in the possession of the appellant under a rent note for Rs. 150. 00 per month. It appears that sometimes thereafter one of the two houses mortgaged was released and the rent was educed to Rs. 75. 00 per month. The appellant having fallen in arrears efferent, the respondent filed suit No. 601 of 1955 in the court of the Munsiff, Kanpur, for a decree for Rs. 2,625. 00 being the rent for the period 30/05/1952 to May 10/05/1955. The suit was decreed by the Munsiff. The decree was sought to be executed by the mortgagee by attachment and sale of the mortgaged property, but the application was rejected. The mortgagee a instituted a suit on the mortgage and obtained a decree. That decree was confirmed by this court in Civil No. 239of 1967 by order, dated 31/07/1967. This court rejected the contention of the appellant that the suit for recovering the mortgage amount was barred under Order 2, Rule 2, Code of Civil Procedure, because of the institution of the suit for recovery of rent.

(2.) The mortgagee again applied for executing the decree in the rent suit and sought execution against the movables of the mortgagor, and the salary received by him as a teacher. The executing court directed execution to issue. The matter was taken up in second appeal to the High court. The High court of Allahabad held that the Executing court was not competent to direct execution against the mortgaged property, but whether the decree could be executed against the other property of the appellant or against him personally was not a matter which need be decided at this stage, because a final decree in the mortgage was passed and the claim of the mortgagee may be satisfied out of the sale proceeds of the mortgaged property.

(3.) This appeal is filed with special leave. We are informed at the bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of the judgment-debtor, or against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then 'by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2. Before the mortgage decree was satisfied the bar of Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of the judgment-debtor. It may now be executed against all his property not exempt from attachment.