YASHODANAND GARG Vs. HINDUSTAN COMMERCIAL BANK KANPUR

JUDGEMENT

(1.) Suit No. 250 of 1951 (Hindustan Commercial Bank Limited Versus Yashodanand Garg and others) was filed by Hindustan Commercial Bank (the first opposite party in this revision under S.115 C.P.C.) in the Court of the 1st Civil Judge, Kanpur for recovery of money on the basis of a mortgage. The suit was decreed on Jan. 16, 1957. The Court found that legal necessity for part of the suit amount was not proved. As such, it passed a preliminary decree for recovery of Rs. 35,269/.5/.3 with interest to be realised by sale of the mortgaged property. A simple money decree for recovery of Rs. 25,230/11/6 was also passed. The Bank filed execution application No. 11 of 1957 on Oct. 30,1957 for the realisation of the amount of the simple money decree. In this case notice under O. 21, R. 44 C.P.C. returnable by Jan. 24, 1958 was issued by the Court on Dec. 19, 1957. The immoveable properties had, in the meantime, been attached. On May 10, 1958 notices were issued under O. 21, R. 44 C.P.C. to the judgment-debtor. The same day, final decree in respect of the mortgage amount was passed. Terms of sale were prepared on Oct. 3,1958.

(2.) On Sept. 12,1959 a compromise (paper No. 69-AI) was filed in Execution Case No. 11 of 1967 and the execution case was disposed of in terms of the said compromise. A copy of that paper has been filed as Annexure 'A' to the counter affidavit filed on behalf of the Bank in the stay matter in the present revision. According to it, proceedings for the sale of house No. 96/15, which was the mortgaged property, was to be dropped for the present. A consolidated amount of Rs. 79,421.96 (inclusive of interest up to July 31, 1959) was admitted by the judgment-debtors to be the claim of the decree-holder. The amount was to be paid in certain instalments with interest for the future period. It was provided that in case there was default on the part of the judgment-debtors in making payment as agreed, the decree-holders would be entitled to execute the decree for the full amount then due against the judgment-debtors forthwith by sale of House No. 96/15. The charge created by the mortgage of the house was to continue intact till the entire money due to the decree-holder had been fully paid.

(3.) In the year 1961 the decree-holder Bank filed Execution Case No.7 of 1961 on the basis of the aforesaid compromise as there was default on the part of the judgment-debtors in making payment in terms thereof. House No. 96/15 was auctioned in the execution case and was purchased by Ishwar Chandra and Kishan Raman (who are the auction purchasers opposite parties 2 and 3 in this revision) on July 16, 1964. Lav Garg and Kush Garg, the two sons of Parmanand Garg (who are opposite parties 7 and 8 in this revision) filed an objection under S. 47 C.P.C. which was registered as Misc. Case No. 20 of 1964. This objection was dismissed on Aug. 8, 1965. Thereafter, the objectors filed an application for review of the order dt. Aug. 8,1964 which was registered as Misc. Case No. 30 of 1964. The review application was allowed in part by order dt. Dec. 19, 1964. A copy of that order is annexure-'o' to the counter affidavit filed in the stay matter in this revision by the decree-holder Bank. The second Additional Civil Judge, Kanpur, who passed this order, took the view that the amount which was to be realised by sale of mortgaged property was not the subject matter of Execution Application No. 11 of 1957. That execution application was in respect of the amount of simple money decree. As such, the compromise dt. Aug. 20, 1959 could not be given effect to and the decree-holder ought to bifurcate the two amounts in executing his decree. The learned Judge, however, repelled the submission made on behalf of the judgment-debtor applicants that the execution itself should be dismissed. He held that the decree-holder had consolidated the amounts in view of the compromise between the parties and had honestly and correctly moved for the execution of the decree of the consolidated amount. It should, therefore, be given an opportunity to bifurcate the amount in the same execution application. The learned Judge was also of the view that the judgment-debtor had been filing objections earlier with a view to delay the execution proceedings and that the dismissal of the present execution application would unnecessarily delay the proceedings for the recovery of the amount and would be unjust and improper. The operative portion of the order passed by the learned Judge was in these terms : "Order The application for review is allowed. The order dt. 8-8-64 is reviewed. Objections are allowed to this extent that the execution for the recovery of the consolidated amount in the present form is not maintainable. The Decree Holders Opposite parties are given an opportunity to bifurcate the two amounts of the simple money decree and the mortgage decree in this very execution case. Costs shall be easy. Sd. 19-12-64" On the basis of this order, an application dt. Jan. 4/7, 1965 was made by the decree-holder Bank for amending the execution application. This application was allowed and the execution application was accordingly amended. After the auction-sale of July, 16,1964, the judgment-debtors had filed an objection under R. 90 of O. 21 C.P.C. on Aug 7, 1964 for setting aside the sale on the ground of the alleged irregularities therein. These objections were dismissed in the year 1965. The judgment-debtors did not proceed in that matter further as, according to them, the order dt. Dec. 19, 1964 had the effect of holding the execution Case No. 7 of 1961 as not maintainable. They also did not press their appeal (F.A.F.O. No. 193 of 1963) in this Court against the order of the dismissal of the earlier objection under S. 47 C.P.C. The file had been summoned by this Court in connection with First Appeal From Order No. 193 of 1963 which was not heard till the year 1972. While the file was still in this Court, an application dt. Aug. 2, 1972 was made by judgment-debtor, Ramanand, under S. 151 C.P.C. before the 1st Civil Judge at Kanpur that on the receipt of the file from the High Court no further order should be passed as the sale stood set aside. That application was ordered to be put up when the record was received at Kanpur from this Court.