OUDH COMMERCIAL BANK LTD Vs. BIND BASNI KUER

JUDGEMENT

(1.) THIS is a decree-holder's appeal. It is brought by the Oudh Commercial Bank, Ltd. , Fyzabad, against an order of the Chief Court of Oudh dated August 14, 1934, dismissing an application for the execution of a final decree for sale passed on January 22, 1916, by the Subordinate Judge, Mohanlalganj, Lucknow. The respondents are the representatives of Babu Narindra Bahadur Singh (herein called the "judgment-debtor") who died in 1936 while the present appeal was pending.

(2.) HE was the grantor of a mortgage to the appellants dated September 2, 1894, for Rs. 2,35,000 at eight per cent. per annum over a large number of ancestral properties including both proprietary (kham) and under-proprietary (pukhtadari) villages. To enforce this mortgage a suit was brought against him by the appellants in 1911 and a preliminary decree for sale obtained on October 31, 1912, from the Subordinate Judge. On appeal to the Judicial Commissioner's Court this preliminary decree was on June 15, 1915, varied, so as to fix the amount outstanding on the mortgage at Rs. 7,96,763, carrying interest at four per cent. from July 3, 1915. Very soon thereafter the Court of Wards, by order of the Government, assumed management of the judgment-debtor's estate, which was not released till September 29, 1917. Accordingly the Deputy Commissioner of Fyzabad, as manager for the Court of Wards, became the defendant in the mortgage suit and the final decree for sale was passed against him (January 22, 1916 ). It fixed the amount then due at Rs. 8,14,470 with future interest at four per cent. on Section 7,96,763.

(3.) BOTH parties obtained a certificate enabling them to appeal to His Majesty in Council from this decree of December 16, 1918. On February 9, 1920, by Order in Council on the judgment-debtor's petition, a stay was granted until the determination of the appeal, upon the terms (a) that the judgment-debtor would pay interest at six and a half per cent. in lieu of four per cent. from September 7, 1916, until realisation and (b) that the present appellants' appeal should be withdrawn. The judgment-debtor's appeal to His Majesty was dismissed in May, 1921, but, the Order in Council not having been so drawn as to give effect to the undertaking to pay increased interest, another Order in Council was passed on May 25, 1922, amending the previous Order in Council by directing that this provision for increased interest be added to the decree of the Court of the Judicial Commissioner dated December 16, 1918. This direction was not formally communicated to the Fyzabad Court (under Order XLV, Civil Procedure Code) till November, 1922, and in the meanwhile execution had been stayed from January to July, 1922, by an injunction obtained by the judgment-debtor in a separate suit attacking the legality of the action of the Court of Wards.