KRISHNA KUMAR SINGH Vs. RAJ NARAIN THAKUR

JUDGEMENT

(1.) In this revision petition the petitioners, who had obtained a mortgaged decree in Title Suit No. 35 of 1950 and had deposited the mortgaged debt, are aggrieved by an order dated 13.8.1992 passed by Sri R.b. Singh, 4th Sub -ordinate Judge, Arrah in a proceeding for final decree in that title suit, whereby the learned Sub -ordinate Judge has held, on a petition filed by the Judgment -debtors -opposite parties, that the final decree cannot be prepared.

(2.) The main reason given by the learned court below for taking the view is that since the mortgaged property had vested in the State of Bihar under the Land Reforms Act, the final decree even if prepared will be inexecutable and infructuous. The learned court below has cited two decisions Vidya Sugar v. Smt. Sudesh Kumari and Ors. and in A.I.R. 1969 SC 971 Shivashankar Prasad Sah and Ors. v. Baikunth Nath Singh in support of the view which it has taken.

(3.) The contention of the learned Counsel for the petitioners is that the learned court below has committed illegality and material irregularity in exercise of jurisdiction in passing the impugned order for two fold reason. First, that during the during the hearing of the suit itself this issue had been raised whether the entire mortgaged interest had vested in the State of Bihar and the issue had been decided in favour of the decree -holders -petitioners and the same issue could not have been allowed to be raised by the judgment -debtors, who filed the petition of objection during the course of final proceeding, which objection has been upheld, Secondly, the court while passing the impugned order was considering the matter whether final decree should be prepared in accordance with the preliminary decree and against the preliminary decree, there was already an appeal filed by the judgment -debtors before this Court and the appeal is pending and in such a situation the learned Sub -ordinate Judge could not legally have given a finding to the effect that if the decree was to be prepared, it would be infructuous or inexecutable and so the final decree cannot be prepared. Further contention is that the ratio of the decision referred to in the impugned order namely, 1975 SC 2295 and 1969 SC 971 could not be held applicable to the facts of this case, inasmuch as, both the decisions related to the stay not in preparation of the final decree but in execution case and in none of the cases land -lord -mortgagor had obtained a decree for redemption with regard to Bakast land, which had been mortgaged previously as is the case here.