MT. MONGI AND ANR. Vs. MAHABIR PERSHAD

JUDGEMENT

(1.) THIS is an appeal against the order passed in execution by the Senior Subordinate Judge of Delhi, overruling the objection of the judgment -debtor with regard to the existence of an order of sale in a mortgage decree.

(2.) A preliminary decree for sale was passed on the 16th of December, 1944, by which Rs. 16,484/6/ - were awarded as mortgage money inclusive of costs, charges and expenses. The principal sum calculated up to the date of the decree was Rs. 15,200/ -. The decree also awarded four months interest at 9 per cent per annum and future interest at 6 percent per annum on Rs. 10,000/ -. On the 3rd of January, 1946, the decree -holder applied to the Senior subordinate Judge, Delhi, for a final decree and on the 8th of April, 1946, the Senior Subordinate Judge ordered "The preliminary decree is made final. The papers may be filed." But evidently no final decree was drawn up.

(3.) ON the 31st of August, 1948, the decree -holder applied for execution and to it he attached a copy of the decree of this Court. Nobody seems to have looked at the copy and on the 16th of May, 1949, a proclamation for sale under Order XXI Rule 66 was drawn up. Before the sale took place, i.e., on the 26th of May, 1949, the judgment -debtor filed objections saying 'inter alia' that there was no properly drawn up decree ordering the sale but in spite of it the sale took place on the 13th of June, 1949, and on the 20th of August, 1949, the objections of the judgment -debtor were overruled because, according to the executing Court, the judgment of this Court had said that the Plaintiff was entitled to recover Rs. 14,200/ - by sale of the mortgaged property.