RAM LAKHAN PRASAD Vs. VIJAY KUMAR AND ANR.

JUDGEMENT

(1.) This is a case which amply demonstrates the correctness of the dictum of the Privy Council that difficulty of a decree -holder starts after he has obtained a decree. I shall briefly state the chequered history of the execution case which has given rise to this miscellaneous second appeal by the decree -holder. Ramgopal Lal respondent no. 2 in this appeal, for self and as guardian of his minor son, Vijay Kumar, respondent no. 1, had executed a mortgage bond in favour of Ramlakhan Prasad, the appellant in this appeal. A mortgage suit was filed by the appellant against the respondents. It appears that the defendants did not appear in the mortgage action. One Shri Sachchida Nand Kishore, a Pleader guardian ad litem, was appointed in the suit for the minor defendant. The preliminary decree and the final mortgage decree were passed on 22.2.55. In the decrees Vijay Kumar was shown under the guardianship of his father Ramgopal Lal. The appellant filed Execution Case No. 50 of 1955 for execution of the mortgage decree. Naturally in his execution petition he put Vijay Kumar under the guardianship of his father Ramgopal in accordance with the final decree. The execution proceeded, and on the 12th of June, 1956 a piece of land measuring 1.06 acres in plot no. 775 in Kankarbagh, one of the quarters in the town of Patna, was sold for Rs. 6,000/ -. It may be stated here that in the execution proceeding valuation of the property sought to be sold had been fixed under Sec. 13 of the Bihar Money Lenders Act. The sale was confirmed on the 12th of July, 1956, and thereafter on 26.7.56 the execution case was dismissed on full satisfaction. It also appears that there was a surplus of Rs. 371/ - in the sum of Rs. 6,000/ - after satisfying the mortgage decree which was being executed in Execution Case no. 50 of 1955. The delivery of possession is said to have been effected in favour of the decree -holder on the 30th of September, 1956.

(2.) On the 12th of December, 1959 Vijay Kumar filed an application labelling it under Order 21 Rule 90 of the Code of Civil Procedure (hereinafter called the Code). He filed this application through Shrimati Deoki as guardian and next friend of the minor, alleging her to be his phuphu (father's sister). In this application the statement was that the processes in the execution case had been served bala bala and all proceedings had been taken fraudulently. Vijay Kumar was said to be living with his phuphu and not with his parents, and his phuphu had no knowledge of the execution case. She is said to have learnt for the first time about the impugned sale a week before the filing of the application. Upon these grounds, the prayer in the petition was (Sic) to set aside the sale or to declare the sale void. There was no allegation in this petition as to whether any delivery of possession had been effected and no prayer was made to recover back possession of the property sold on 12.6.56.

(3.) The decree -holder filed a rejoinder to this petition of respondent no. 1 on 17.6.61. The case was taken up for hearing on 19.8.61 and, as it appears from the rejoinder of the decree -holder later filed on 16.9.61 in reply to another petition filed by respondent no. 1 on 19.8.61, a point was subsequently pressed in the petition filed on that date (19.8.61) that the minor applicant had been put under the guardianship of a pleader guardian ad litem in the suit and in the execution he was put under his natural guardian, the father. The decree -holder in his rejoinder had endeavoured to meet this point by stating some facts. The application filed by respondent no. 1 on 12.12.59, which was numbered as Miscellaneous Case 92 of 1959, had chequered history. In the first instance, it was treated as an application under Order 21 Rule 90 of the Code and it was dismissed for non deposit of security money as required under the Patna Rule. After restoration, the application (Sic) which was also rejected by the court below on 26.5.61. The matter came up in civil revision to this Court in Civil Revision No. 933 of 1962 which was allowed by me on 8.3.63. The court below was directed to proceed with the application filed by respondent no. 1 on 12.12.59 as an application under Sec. 47 of the Code and dispose it of in accordance with law.