JITENDRA BAHADUR SINGH Vs. BALLABH DAS

JUDGEMENT

(1.) This execution of decree appeal is preferred by the judgment-debtor. The material facts are as follows :

(2.) On 17th April 1920, a preliminary decree for sale on the basis of a deed of mortgage was passed by the Subordinate Judge, Barabanki, for RS. 1,06,660 with future interest at Rs. 5-4-0 per cent. per annum in favour of Gobardhan Das. A final decree on the basis of this preliminary decree was passed on 27th January 1923. On 19th March 1931, the names of Ballabh Das and Madan Murari, opposite parties Nos. 1 and 2, were substituted on the record as Gobardhan Das, the original mortgagee, was dead and they were his legal representatives. On 1st July 1932 Ballabh Das and Madan Murari applied for execution of their decree. They sought execution against Narendra Bahadur Singh, Rudr Pratap Singh. Jang Bahadur Singh and Sri Chandar Singh. Jang Bahadur Singh and Sri Chandar Singh were minors. It appears that there was a partition among the descendants of the original mortgagor Inder Dawan Singh and they agreed to pay the decretal debt in specified shares. The application for execution prayed for realization of a sum of Rs. 15,669-7-0 by sale of a 4 anna share in village Dakkhimpara, pargana Mangalsi, District Fyzabad. Before the property could be brought to sale Rudr Pratap Singh made an application under Section 4, Encumbered Estates Act on 20th November 1943. The Special Judge apportioned the debt and held him liable to pay only one-sixth of the amount claimed. The remaining five-sixth was to be paid by the other judgment-debtors. On 13th December 1943, the decree-holders prayed that the sale officer, Fyzabad, be directed to put to sale a five-sixths share of the property mentioned in the execution application for satisfaction of the debt. The present appeal arises out : of the objections preferred under Section 47, Civil P. C., against that application. The main grounds of objections were :

(3.) The first point, namely, that the Special Judge's order apportioning the debt between the applicant and the non-applicant landlords did not amount to a decree is irrelevant and besides the point. What the decree-holders, Ballabh Das and Madan Murari, sought by their application of 13th December 1943, was a continuation of the proceedings in execution intitiated by their application of 1st July 1932. There was no application for execution of any fresh decree or order, so the question whether the order of the Special Judge apportioning the debt between the applicant and the non-applicant landlords does or does not have the force of a decree is immaterial.