TULASIRAM BANCHHOR Vs. K SATYANARAYAN

JUDGEMENT

(1.) The decree -holder is the petitioner impugning the order of the Subordinate judge dated 19. 10. 1982. By the impugned order, the learned Subordinate Judge has allowed the application filed by the judgment -debtor under Section 47 of the Code of Civil Procedure and has held that the decree in question has become inexecutable in view of Section 10 -B of the Orissa (Scheduled Areas) Money -Lenders' Regulation, 1967 (hereinafter referred to as the 'Regulation') as introduced by Orissa Regulation 2 of 1976.

(2.) THE plaintiff filed a suit on the allegation that the defendant had taken some loan from him on executing a mortgage deed and by delivering the mortgaged property in his favour. But after the plaintiff remained in possession of the land for one year, the defendant forcibly rook over possession of the land and also did not pay the amount which he had taken on loan and, therefore, the plaintiff filed the suit for recovery of the amount in question. This suit was decreed ex parte on a finding that the plaintiff remained in possession of the mortgaged land for one year from the date of execution of the mortgage and thereafter the defendant forcibly dispossessed him and consequently the defendant is liable to pay the amount taken by him on loan. When the plaintiff levied execution of the said decree, the defendant filed an application under Section 47 of the Code of Civil Procedure contending inter alia that the mortgage in question stood redeemed by operation of law after expiry of seven years from the date of the execution of the mortgage deed under Regulation 10 -B and, therefore, the decree in question obtained by the plaintiff is a nullity and has become inexecutable. The plaintiff -decree -holder filed objection to the said petition contending that the executing Court cannot go behind the decree and, at any rate, in view of the finding of the Subordinate judge that the plaintiff was in possession of the land only for a period of one year from the date of mortgage whereafter the defendant has forcibly taken over possession, the provision of Regulation 10 -B has no application and consequently, the decree remains executable. The learned Subordinate judge relying on the evidence of P. W. 2 came to the conclusion that in fact the decree -holder had remained in possession of the land for seven years and, therefore, according to him the provision of Regulation 10 -B would apply in full force. - -

(3.) AFTER perusing the impugned order, I am of the opinion that the contention of the learned counsel for the petitioner is well -founded. The executing Court has indeed gone behind the decree to find cut the legality of the same on an ancillary finding as to the period of possession by the plaintiff over the mortgaged property. In the suit itself, there is a specific finding that the plaintiff was in possession of the land for a period of one year from the date of the execution of the mortgage deed. In that view of the matter, it was not open for the executing Court to alter that finding on the basis of some evidence adduced in the execution case. Consequently, the order of the executing Court must be held to be in excess of the jurisdiction and, therefore, cannot be sustained in law.