MUNNI LAL Vs. SONA

JUDGEMENT

(1.) This writ petition, under Article 226 of the Constitution of India, is directed against the order dated 14-9-1977, contained in Ann. '3' to the writ petition, passed by the District Judge, Mirzapur, opposite party No. 4. by which he allowed the appeal and set aside the auction sale, held on 13th of May. 1969 wherein the petitioners had purchased plot No. 44 area 1 bigha 1 biswa situated in village Tarkapur, Pargana Kantit, tahsil and district Mirzapur.

(2.) Briefly stated the facts of the case, giving rise to this writ petition, are that the opp. parties Nos. 2 and 3, namely, Shiv Shanker and Smt. Karora, had filed a suit No. 232 of 1956, against the deceased opp. party No. 1, Smt. Sona alias Sonia, for the recovery of certain money on the basis of a simple mortgage deed. The suit was decreed on 25th Apr., 1957 and a preliminary decree, under Order 34, Rule 4 C. P. C., was passed and a final decree for the sale of mortgaged property was prepared on 16th May, 1958. That decree was put in execution, but it was not fully satisfied as the entire amount, due under the decree, could not be realised by the sale of the mortgaged property. Thereupon, an application was moved by the decree holder on 23rd of Feb., 66, under Order 34, Rule 6, a copy of which has been annexed as Ann. '1' to the supplementary reminder affidavit. In this application it was averred that a sum of Rs. 2749.75 P. has remained unpaid, which could not be realised by the sale of the mortgaged property; hence a personal decree be passed under Order 34, Rule 6. Although a prayer, in the body of the application, to the effect that a decree be passed under Order 34, Rule 6, was made but, at the end of the application it was mentioned in the prayer that 'a decree be prepared under Order 34, Rule 5, which apparently was mentioned by inadvertence. This application was allowed on 21-9-66 and the decree holder, on 16-8-67, applied for the execution of that decree by sale of the properties other than the mortgaged property and in execution of the decree, plot No. 44 area 1 Bigba 1 Biswa, situated in village Tarkapur, district Mirzapur, was attached on 31st of March, 1969 and it was sold a sum of Rs. 1000/- in auction sale held on 13-5-69.

(3.) The judgment debtor filed an objection under Section 47 C. P. C., inter alia, on the grounds that the execution cannot proceed against the aforesaid plot in question as the same was not a mortgaged property and the decree, which was prepared, was under Order 34, Rule 5 and not under Order 34, Rule 6; hence the execution application be rejected and the execution should not proceed against the aforesaid plot in question. This application was rejected by the trial court on 25th Jan., 1969. The judgment debtor, aggrieved by the said order, preferred First Appeal No. 64 of 1969 which was allowed by the District Judge, vide its order dated 23rd July, 1969, on the ground that as no decree, as a matter of fact, was prepared under Order 34. Rule 6, hence the decree holder could not proceed against the non-mortgaged property. A Second Execution Appeal No. 1513 of 1969 was, thereupon filed by the decree holder which was allowed by this court vide its judgment and order dated 4-4-72, a true copy of which is annexed as Ann. '4' to the writ petition. The case was remanded to the executing court with the direction that it be kept pending and the decree holders were afforded opportunity to have the decree rectified by getting the mistake removed if] preparation of the aforesaid decree which was wrongly prepared under Order 34, Rule 5 instead of Order 34. Rule 6.