RAM KISHORE TANDON Vs. SHAYAUR SUNDAR LAL

JUDGEMENT

(1.) This appeal arises out of an application made by the judgment-debtor under Sections 8 and 9, U. P. Debt Redemption Act, (XIII [13] of 1940) for amendment of a preliminary decree for sale passed in a mortgage suit. The mortgage was executed by Shyam Sunder Lal in favour of the appellant Ram Kishore Tandon in respect of an advance of Rs. 1428 at six per cent. interest compoundable half yearly. The hypothecated property consisted of two houses in the city of Gonda and five tenancy groves in an agricultural village called Gird Gonda. Out of the mortgage money only a sum of Rs. 339 was paid in cash at the time of the execution of the mortgage the balance of the consideration was set off against sums due under six earlier mortgage deeds in respect of the case property executed by the same mortgagor in the name of one Sarju Prasad, grand-father of Ram Kishore Tandon, the mortgagee in the deed of 30-3-1927. It is not disputed that the interest of the mortgagee under the earlier deeds was vested in Ram Kishore Tandon at the date of the mortgage dated 30-3-1927. The first of these six deeds was executed on 26-4-1915 and the last one on 23-10-1916. In these deeds the rate of interest was 12 per cent. compoundable half yearly.

(2.) On 26-8-1939, Ram Kishore Tandon, the mortgagee, obtained a preliminary decree for sale on foot of the mortgage dated 30-3-1927 (Ex. 1). It was for a sum of Es. 1428 with future interest at six per cent. payable in eight annual instalments. On failure of payment of any one instalment, the decree-holder was given a right to apply for preparation of a final decree. On default of payment of the instalments, the decree-holder applied for making the preliminary decree absolute, or final. Eventually on 12-12-1942, the Court passed the final decree. I may observe here that before the final decree was passed, the mortgagor--the judgment-debtor--respondent--does not appear to have put forward any claim--as he might well have done under Section 9, Debt Redemption Act--for a fresh determination of the amount due under the decree in accordance with the provisions of the Debt Redemption Act nor does he appear to have filed any appeal against the preliminary decree.

(3.) While proceedings for execution of the final decree were pending, on 2-2-1944, the judgment-debtor put in his application for amendment under Sections 8 and 9, Debt Redemption Act, praying for amendment of the preliminary decree. This application was contested by the decree-holder on various grounds. Amongst-other grounds, it was urged that no amendment of the preliminary decree was possible inasmuch as it had been superseded by the final decree passed in December 1942. The decree-holder also made a declaration purporting to be under Section 4 (3) of the Act to the effect that he would not execute the decree against the land, agricultural produce or person of the judgment-debtor.