MOOL CHAND RASTOGI TRUST Vs. BATAY KRISHNA

JUDGEMENT

(1.) THIS appeal by the decree-holder arises out of proceedings under Section 47, Civil P. C. In order to appreciate the point in controversy in the appeal, it is necessary to state the relevant facts which are not disputed.

(2.) ON the basis of a registered mortgage deed dated 2-2-1931, executed by Lala Batey Krishna respondent, a suit was brought by the appellant. Both the mortgagor and the mortgagee referred the matter to Lala Lakshman Das for arbitration. After the receipt of the award a decree was passed on its basis on 22-1-1943. Under this decree which was founded upon the award the judgment-debtor mortgagor was to pay the decretal amount in certain instalments. It was also provided that in case the judgment-debtor failed to pay three consecutive instalments, the decree-holder would be entitled to realise the entire decretal amount by sale of the zamindari property mortgaged under the deed. The last provision was that in case the sale of the zamindari property was not found sufficient to pay off the decretal amount, the decree-holder shall be entitled to execute his decree against the person and other property of the judgment-debtor. It is not disputed that there was default in the payment of instalments which entitled the decree-holder to execute his decree in its entirety.

(3.) THE decree-holder applied for execution on 25-7-1952 and the amount for which the execution was sought was mentioned in the application as Rs. 48,965/7/ -. By this application the decree-holder prayed attachment of certain houses and other properties of the judgment-debtor, i. e. , other than the mortgaged property mentioned in the decree. It was pointed out in the application that the decree-holder was not able to proceed as against the zamindari property because that property had vested in the Government and was 110 longer in the ownership of the judgment-debtor. The prayer of the decree-holder was allowed and the properties were attached. Thereupon the judgment-debtor filed an objection under Section 47, C. P. C. , Questioning the attachment on two main grounds: