GHULAM MUSTAFA AND ANOTHER Vs. B. HARISH CHANDER

JUDGEMENT

(1.) This is a decree-holder's appeal that arises out of an objection filed under Sec. 47 C.P.C.

(2.) It appears that Beni Prasad had four sons. Murli Dhar, Mata Prasad, Sital Prasad and Nanak Chand. Nanak Chand had, however, been adopted by a brother of Beni Prasad named Sheo Narain Lal. Murli Dhar had two sons Harish Chand and Bhagwat Prasad. Bhagwat Prasad had been adopted by Nanak Chand. Beni Prasad and Sheo Narain Lal were separate. Beni Prasad borrowed Rs. 5,000.00 from the appellants and executed a mortgage bond in their favour hypothecating his ancestral property far the debt. A suit was flied to enforce the mortgage bond but the only person impleaded in it as a defendant was Beni Prasad. He contested the suit but his objections were over-ruled and a preliminary decree was passed under O. XXXIV, R. 5, C.P.C. He then died and Harish Chand, his grandson was brought on record in his place as his legal representative. During the proceedings for the preparation of a final decree Harish Chand wanted to raise the question that the mortgage on the basis of which the preliminary decree had been passed was not justified by legal necessity. But he was not allowed to raise that question and a final decree under O. XXX IV, R. 5, C. P. C. was passed against him. When the decree was put under execution Harish Chand filed an objection under Sec. 47 C. P. C. in which he contended that the mortgage was not justified by legal necessity and as the mortgaged property was his ancestral property he was not bound by the decree and the mortgagee in execution of the decree could not get the mortgaged property sold. Evidence was led by both the parties in connection with this objection. The mortgagee tried to prove legal necessity. The learned Civil judge, however, found that the evidence produced to prove legal necessity was not sufficient and legal necessity was therefore not proved. He also held that the debt had not been taken for a purpose which could be binding on the sons or grandsons of the mortgagor. It was not alleged or proved that the debt did not exist or that it had been taken for improper purpose. On the basis of the finding that the mortgage was not justified by legal necessity the learned Civil judge allowed the objection and declared that the mortgaged property was not liable to be sold in execution of the decree.

(3.) The decree-holders have now come up in appeal against the order allowing the objection under Sec. 47, C. P. C. and two contentions are pressed on their behalf. It is urged in the first place that Harish Chand, the grandson of Beni Prasad, could avoid the decree or the debt only by showing that it was tainted with immorality and as he failed to establish that fact the decree ought to have been allowed to be executed against him. The second contention is that in any case it was not open to the judgment debtor to rise objection to the decree whirl he actually raised under Sc.2 47, C.P.C .