SM GAURI KUMARI DEVI Vs. KRISHNA PRASAD

JUDGEMENT

(1.) In this case the rule has been issued at the instances of the judgment-debtor and is directed against the order dated the 20th April, 1955, passed in Miscellaneous Case No. 16 of 1955 arising out of Execution case No. 19 of 1954, whereby the Court of execution has reviewed its own order passed therein on 23rd December, 1954, and has finally held that a personal decree against the judgment-debtor had already been passed at the time of the passing of the mortgage decree under execution, and, therefore, it was not necessary for the decree-holders to obtain a fresh decree under Order 34, Rule 6, Civil Procedure Code for proceeding in execution against any of the non-hypothecated properties of the judgment-debtor and as such the execution levied in the present case against the non-hypothecated properties of the judgment-debtor was maintainable in law.

(2.) The important facts leading to the proceeding in execution and to the orders passed on 23rd December, 1954, and 20th April, 1955, are as follows. The judgment-debtor petitioner before us executed a mortgage in favour of the decree-holders opposite party on 10th July, 1937, and thereunder he hypothecated 10 annas and 8 pies share of his touzi No. 11912 lying in the District of Patna. Subsequently in the title suit No. 84 of 1943 arising out of this mortgage a preliminary mortgage decree was passed on 29th July 1946 and then a final decree on 30th July, 1947. Thereafter on 27th June, 1953 before any step had been taken for execution of that mortgage decree, the property under mortgage, namely, 10 annas and 8 pies of the zamindari in tauzi No, 11912 vested in the State of Bihar under the provisions of the Land Reforms Act, 1950. In those circumstances the decree-holders on the vesting of the mortgage property in the State applied for the transfer of the decree to the Court at Gaya and on obtaining certificate of non-satisfaction put it into execution against some non-hypothecated properties in the Court of the 1st Subordinate Judge of that place in Execution Case No. 19 of 1954, Therein the judgment-debtor filed an objection which was numbered as Miscellaneous Case No. 96 of 1954. The main plea raised was that the execution could in no case at that stage proceed against any of the non-hypothecated properties of the judgment-debtor for no personal decree under Order 34, Rule 6, Civil Procedure Code, had so far been passed against him. This Miscellaneous case, as it appears from the order, was taken up ex parte and decided in favour of the judgment-debtor on 23rd December, 1954. The allegation of the decree-holders is that this order was passed behind their back and when they came to know of it they filed an application for the review of that order. That was numbered as Miscellaneous Case No. 16 of 1955 and it was in that miscellaneous case that the order under revision was passed. According to this order, it has been held that the personal decree had already been passed against the judgment-debtor along with the mortgage decree and though-by oversight the important clause in the judgment relating to the personal decree was not incorporated in the decree under execution, it was open to the executing Court to read the decree in the light of the judgment and then to allow the decree-holder to enforce the personal liability, as provided in the judgment by taking execution against the non-hypothecated properties of the judgment-debtor.

(3.) Mr. Lal Narayan Sinha appearing for the judgment-debtor petitioner has raised mainly two- contentions (1) that the order is wrong on merit and (2) that no review lay Against the order passed on 23rd December, 1954.