BIRENDRA PRASAD SUKUL Vs. SURENDRA PRASAD SUKUL

JUDGEMENT

(1.) These are four Miscellaneous Appeals and they raise a common question of law. The first three appeals, namely, Miscellaneous Appeals Nos. 99 of 1949, 364 of 1950 and 11 of 1951 are miscellaneous First Appeals and they arise out of an execution proceeding. The fourth one, namely, Miscellaneous Appeal No. 247 of 1952 is a miscellaneous Second Appeal and arises out of an entirely different execution proceeding and is absolutely unconnected with the first three appeals.

(2.) The facts giving rise to the first three appeals, stated shortly, are as follows:

(3.) On 20-1-1940, Surendra Prasad Sukul Bhupendra Prasad Sukul and Raghabendra Prasad Sukul, obtained a final mortgage decree for sale for Rs. 50,028/3/6 against Birendra Prasad Subul and his two sons, Bijendra Prasad Sukul and Dhirendra Prasad Sukul, in mortgage suit No. 32 of 1929. This final decree was signed on 12-24940 and was put in execution on 23-1-1941, in execution case No. 9 of 1941, in the court of Subordinate Judge of Muzaffarpur by Surendra Prasad Sukul, one of the decree-holders, under Order 21, Rule 15, Civil P. C. The question of valuation under Section 13, Bihar Money Lenders Act was raised in the execution case and was finally decided by this court on appeal from the order passed by the executing court. Thereafter, an application was made under Section 11, Bihar Money Lenders Act for permitting the judgment-debtors to pay the decretal dues by instalments. After certain other miscellaneous proceedings in the execution case, the matter again came to this court on appeal in Miscellaneous Appeal No. 379 of 1944. By that time the decretal dues came to be about Rs. 60,000/-. It appears that the judgment-debtor, Birendra Prasad Sukul, had also a decree for Rs. 25,000/-against Surendra Prasad Sukul, one of the three decree-holders. This court, on 4-2-1946, in the above miscellaneous appeal, directed that the decretal dues of the judgment-debtor Birendra Prasad Sukul, amounting to Rs. 25,000/- should be set off and the balance of the decree money should be paid by him in seven yearly instalments. It was further directed that the first two of these instalments will be of Rs. 6,000/- each payable on 15-7-1946 and 15-7-1947. The third instalment was fixed at Rs. 4,0007-payable on 15-7-1948. The remaining instalments were to be of Rs. 5,000/- each payable on 15th July of each year, excepting the last instalment, by which the whole outstanding amount under the decree was to be paid on 15-7-1952. The further direction of this court was that the first three instalments will be appropriated by the other two decree-holders, namely, Bhupendra Prasad Sukul and Baghavendra Prasad Sukul and that after the three instalments were paid, the matter was to be placed before this court for further orders. It was also directed that in case of default of any instalment, the decree was to be executable at once and the matter was to be placed before this court for suitable orders. There was, however, default in paying certain instalment and this court, on 10-9-1948, passed an order to the following effect: