MOHAMMAD ISMAIL Vs. LALA CHATTAR SAIN

JUDGEMENT

(1.) THIS execution second appeal raises an important question of law as to whether the judgment debtor was entitled to the benefit of the provisions of Order 34, Rule 14 Code of Civil Procedure.

(2.) THE facts giving rise to the appeal are that a decree for mesne profits was passed against Mohammad Ismail Appellant in original suit No. 59 of 1955 which was a suit for recovery of rent upon the basis of rent note. It was admitted between the parties that the property in dispute was originally purchased by one Mohammad Sadiq, brother of Mohammed Ismail, that Mohammad Sadiq had executed a usufructuary mortgage on 27 -8 -1935 in favour of the decree -holder Lala Chattar Sain, that on the same date Mohammad Sadiq also executed a rent note in favour of the decree holder under which he became a tenant of the premises on a monthly rent, that in 1948 Mohammad Sadiq migrated to Pakistan and his brother Mohammad Ismail, the present judgment debtor, had been in possession of the houses, that the suit was finally decreed in the second appeal by the High Court with the findings that the Defendant was in possession and liable to pay damages for use and occupation to the Plaintiff, who was the usufructuary mortgagee of the entire house. The decree -holder wanted to sell the equity of redemption in the execution of the said decree.

(3.) BOTH courts dismissed the judgment -debtor's objection and hence this second appeal. The short point which falls for determination is as to whether the provisions of Order 34, Rule 14 Code of Civil Procedure are attracted to the facts of the present case. I have heard the learned Counsel for the parties and also perused the various rulings cited by them. It appears that the present case is not covered by any direct authority on the point and therefore, it has to be decided on an interpretation of the language of Order 34, Rule 14 Code of Civil Procedure which reads as follows: