KEDARNATH GOENKA Vs. KHAJA HASSAN IMAM

JUDGEMENT

(1.) This appeal has been, filed under the provision of Section 47 of the Code of Civil Procedure by the appellants, described as decree-holders against the respondent, described as the judgment-debtor. It is directed against an order passed by the learned Subordinate Judge on the 29th of April, 1981, allowing Miscellaneous Case No. 68 of 1959, filed by the respondent, in Execution Case No. 57 of 1956.

(2.) The facts, shortly stated, are these : The respondent had executed a simple mortgage bond on the 28th of August, 1330, in respect of the proprietary interest in several touzis. Appellant No. 1 had obtained a mortgaga decree based on this mortgage, to Title Mortgage Suit No. 33/23 of 1943/1945. An Execution. Was levied by the decree-holder in which an objection was taken by the respondent, as a result of which the miscellaneous case in question was registered. It appears that the judgment-debtor had filed First Appeal No. 301 of 1948 against the decree passed in the mortgage suit, but the appeal was found to be infructuous, in view of Section 4(d) of the Bihar Land Reforms Act. By judgment of this Court dated the 7th of January, 1958, the appeal was disposed of. The mortgagee had, in the meantime, made his claim under Section 14 of the Land Reforms Act and a Claims Officer allowed the creditor's claim to the extent of Rs. 93,000/- as principal and Rs. 63,128-11-3 pies as interest besides future interest at 3 per cent per annum. This order had been passed on the 27th of July, 1956. In the original execution case, the decree-holder had prayed for the sale of the mortgaged properties, but after the- claim was allowed under the Bihar Land Reforms Act, the execution petition was amended and it was prayed that only the cost of the suit, amounting to Rs. 3,542-8-9 pies may be realished by sale of some other properties of the judgment-debtor. In the miscellaneous case in question, the only point which was urged at the time of hearing was that the decree-holder had no further right to realise the amount of cost decreed in the mortgage suit by putting other properties of the judgment-debtor to sale. The stand taken, by the decree-holder was to the effect that the decree-holder had claimed only the principal mortgage money and interest under the Bihar Land Reforms Act, and the decree for costs awarded in the mortgage suit remained intact and couid be executed by the decree-holder by putting other properties of the judgment-debtor to sales. This point has been decided by the learned Subordinate Judge in favour of the respondent judgment-debtor and the miscellaneous case has been allowed.

(3.) Learned counsel for the appellants has drawn our attention to Section 4(d) and Section 14 of the Bihar Land Reforms Act and has urged that the decree-holder creditor had claimed, under Section 14 of the Act, only the amount of debt legally and justly payable by the debtor and there is no bar under Section 4(d) by which the decree-holder can fie prevented from proceeding with the execution of the decree for costs against the properties of the judgment-debtor, which had not been given in mortgage. According to learned counsel, when the mortgaged properties had been put out of reach of the creditor under the provisions of the Bihar Land Reforms Act, the decree for costs should be permitted to be executed as a personal decree, by sale of the judgment-debtor's properties which are available for satisfaction of this decree.