RAMESH CHANDER JAIN Vs. MANOHAR LAL JAIN

JUDGEMENT

(1.) These four excution petitions, namely. Ex. No. 53 of 1972 (Ramesh Chander Jain v. Manohar Lal Jain) Ex. No. 54 of 1972 {Smt. Manju Jain v. Manohar Lal Jain) Ext. No. 63 of 1971 (Sita Ram Sharma v. Manohar Lal lain) and Ext. No. 34 of 1973 (Yogesh Sharma and others v. Devi Dayal Jain and. others) arc of four rival decree-holders claiming execution of their decrees against the assets of Manohar Lal Jain (since deceased) by payment of the surplus of the amount realised in execution of the mortgage decree in suit No. 157 of 1968.

(2.) In the suit, being suit No. 157 of 1968 (Kishan Mohan Kapoor and others v. Manohar Lal Jam) a decree was granted by this Court on 22-1-1969, for realising the loan amount by the sale of the mortgaged property bearing No. 89 to 94/4, Dariba Kalan, Delhi (hereinafter referred to as the mortgaged property). The final mortgage decree by sale of the mortgaged property for recovery of Rs. 53.791.67 and interest on Rs. 50.000.00 at the rate of 7 per cent per annum for the date of the suit till realisation with costs of the suit was passed in favour of Shri Kishan Mohan Kapoor and others against Judgment-debtor, Shri Manohar Lal Jain. It was ordered in that decree that if the judgment- debtor deposits in the High Court by February 16, 1970, the decretal amount, the decree shall be deemed to be satisfied. The judgment- debtor Shri Manohar Lal Jain committed default in the payment of the decretal amount by February 16, 1970 and as such, the decree- holders moved an application dated March 25, 1970 being Execution No. 17 of 1970 in this Court, for sale of mortgaged property. In pursuance of the orders dated May 26, 1970 passed in execution Case No. 17 of 1970, the mortgaged property being property No. 89 to 94/4, Dariba Kalan, Delhi was put to auction on Augast 23, 1971. The highest bid was for Rs. 95,000.00 . On August 26, 1971, a sum of Rs. 23,750.00 was deposited by the auction-purchaser Gulzari Lal Jain with the Court-Auctioneer, who in turn deposited it with the Administrative Sub Judge, Delhi. The balance of the auction money of Rs. 71.250.00 was deposited with the Administrative sub Judge, Delhi on 31-8-1971. Out of the amount of Rs. 95,000.00 , the decree in suit No. 157 of 1968 (Execution case No. 17 of 1970) has been satisfied by payment of a sum of Rs. 78,662.92. Rs. 2.500.00 is payable for court auction out of which 80 per cent has been paid to the Court-auctioneer and balance of 20 per cent deposited to the account of the Government. The balance of Rs. 13,837.08 is lying with the Aministrative Sub Judge, Delhi. All the four rival decree-holders are claiming this amount lying with the Administrative Sub Judge, Delhi. It would be necessary to give facts relating to the decrees and the execution petition of the rival decree-holders.

(3.) So far as execution Cases Nos. 53 of 1972 and 54 of 1972 are concerned, the relevant dates are the same. In the case of Ramesh Chander Jain, however, the decree is for Rs. 5,206.25 paise, plus costs and in the case of Smt. Manju Jain the decree is for Rs. 5,225.25 plus costs. Both these decrees were passed by the Subordinate Judge, Delhi on 31-8-1970. On September 7, 1970, applications for execution were filed praying for attachment of property No. 89 to 95/4 situate at Dariba Kalan, Delhi. On September 8, 1970 the Subordinate Judge passed orders for attachment of the said property. On September 18, 1970 the attachment was effected by court-bailiff at the spot by pasting the courts notice attaching the said property and by beat of drum. Thereafter, applications were made under Order 21 Rule 66 of the Code of Civil Procedure for drawing proclamation of sale. Shri Kishan Mohan Kapoor and others filed objections that the said property which was sought to be sold by these decree-holders was already under mortgage with them and a decree had been granted by the High Court of Delhi. On December 4, 1970, however, the objectors were not present to support the objections. On the request of the decree holders the Subordinate Judge directed that the proclamation of the sale of the said property be issued subject to the decretal amount in suit No. 157 of 1968 (Kishan Mohan Kapoor and others v. Manohar Lal Jain) and directed the sale of the property. The auction could not take place as Manohar Lal Jain died on 24-1-1971 and proceedings were initiated for bringing on. record his legal representatives. It is not necessary to mention other facts relating to these two executions, but after the property was auctioned on 23-8-1971, in executions, of the decree in Execution Case No. 17 of 1970, on the request of decree-holders, the Subordinate Judge directed attachment of the excess amount, if any, after satisfying the decree in the case of (Kishan Mohan Kapoor v. Manohar Lal Jain) to the extent of Rs. 6,225,50 in case of Ramesh Chander Jain and to the extent of Rs. 6,247.25 in case of Smt. Manju Jain. This attachment was served on the Administrative Sub-Judge on September 23, 1971. On July 11, 1972 the decree-holders moved, two applications dated July 6, 1972 in this Court for transfer of the executions pending in the Subordinate Court and for payment of the amount to the two decree-holders and in case the left-over amount is not sufficient to fully satisfy the decrees of Shri Ramesh Chander Jain and Smt. Manju Jain, then the two decree-holders be paid reteably. These applications seeking transfer of the execution applications pending in the court of Subordinae Judge to enable the decree-holders to have rateable distribution of the amount recovered in Execution Case No. 17 of 1970, came up for orders before this Court on September 25, 1973, when Chawla, J directed that the file of the execution, pending Before Shri P. K. Jain, Subordinate Judge, be summoned and the case be listed for making further orders as may then be necessary. These two applications have been registered in this court as Execution No. 53 of 1972 and Ex. No. 54 of 1972. A decree in suit No. 499 of 1970 (Sita Ram Sharma v. Manohar Lal Jain) was granted on 19th October, 1970 by the Subordinate Judge, Delhi for the recovery of Rs. 9,675.00 with interest at the rate of 6 per cent per annum on Rs. 7,500.00 from September 8. 1970 till realisation plus costs. On September 10, 1971, Shri Sita Ram Sharma filed an execution applications before the Subordinate Judge praying for execution of the decree by attachment and sale and by joining in the rateable distribution of the amount to be recovered in the execution of the decree in the High Court in Execution Case No. 17 of 1970. Under the orders of the District Judge dated 25-9-1971 this execution application was transferred to the High Court for rateable distribution and was registered as execution case No. 63 of 1971. Chawla, J. on May 22, 1972, directed that the amount lying in deposit in Execution No. 17 of 1970, which may be available after the decree in that case is satisfied will be attached in execution of the decree in Execution Case No. 63 of 1971.