GAURI KUMARI DEVI Vs. BABU KRISHNA PRASAD

JUDGEMENT

(1.) This application by the judgment -debtor is directed against the order of the learned Subordinate Judge reviving Execution Case No. 19 of 1954 and holding that the decree -holders were not debarred from executing the decree passed in Title (Mortgage) Suit No. 84 of 1943.

(2.) This case has a chequered career and the facts giving rise to the present litigation are these: - The petitioner was the owner of 10 annas 8 pies proprietary interest in village Sonechari, tauzi No. 11912 in the district of Patna. There was khudkasht land measuring 16.41 acres appertaining to khata No. 3 in this tauzi. On 10 -7 -1937 the petitioner along with her husband Shayama Kant Lal executed an anomalous mortgage deed in respect of the said share in favour of Krishna Prasad and his three sons (opposite party Nos. 1 to 4) for a sum of Rs. 35,000/ -. The mortgagees, opposite party Nos. 1 to 4 instituted Title Suit No. 84 of 1943 in the Court of the Subordinate Judge, Patna to enforce that mortgage, but later on the suit was transferred to the Court of the Additional Subordinate Judge, First Court, Patna and was re -numbered as Mortgage Suit No. 7 of 1945, This suit was decreed on 26 -8 -1946 and the trial Court while passing that preliminary decree ordered that "for the satisfaction of the decretal amount the mortgaged properties would be charged preliminary and if the decretal amount is not fully satisfied from them, then' defendant No. 1 (Gauri Kumari Devi) would be personally liable for the satisfaction of the balance, if any." This preliminary decree was for a sum of Rs. 50,308/14. Final decree was subsequently passed on 30 -9 -1947 for Rs. 52,950/3/ -. The decree -holders filed an Execution Case No. 12 of 1948 in the Court of the Subordinate Judge at Patna, but it was dismissed for default. Thereafter, they filed another execution Case No. 6 of 1952 in the Court of the Subordinate Judge at Patna for the realisation of the decretal amount by the sale of the mortgaged zamindari properties. While the said execution case was pending, the mortgaged properties vested in the State of Bihar on 27 -6 -1953 under the provisions of the Bihar Land Reforms Act, 1950 and, accordingly, the petitioner filed an application on 28 -9 -1953 stating that the execution case was not maintainable after the vesting inasmuch as those properties were not liable to sale. Ultimately, the said execution case was dismissed on the 9th of January, 1954 for default. But before this dismissal, the mortgagees had filed on the 16th of December, 1953 an application before the Claims Officer, Patna under Section 14 of the said Act and it was registered as Claim Case No. 10 of 1953. The decree -holders then got the decree transferred to the Court of the Sub - ordinate Judge, First Court, Gaya and they filed on 24 -2 -1954 Execution Case No. 19 of 1954 in that Court against the petitioner and her husband for realisation of the decretal amount together with interest according to the aforesaid decree passed in Mortgage Suit No. 84 of 1943 by sale of certain properties, which were not the subject matter of the mortgage. On 13 -8 -1954 the petitioner filed an objection challenging the maintainability of the execution case in view of the provisions of the Bihar Land Reforms Act and on a further ground that there was no personal decree against her. That objection petition was registered as Miscellaneous Case No. 96 of 1954. The Subordinate Judge allowed the objection on 23 -12 -1954 holding that the execution case could not proceed against the other properties, inasmuch as, there was nothing on the record to indicate that any application under Order XXXIV, Rule 6 of the Civil Procedure Code was filed by the decree -holders and a decree under that rule was obtained by them. This order was passed ex parte. In view of that order, the execution case dismissed on 23 -12 -1954 as being not maintainable and this order was recorded separately on 23 -12 -1954. It was noted in the register of execution cases that this execution case was dismissed as not maintainable and this result was communicated to the transferor court on 10 -1 -1955.

(3.) The decree holders then filed an application under order 47, Rule 1 and Section 151 of the Civil Procedure Code for the review of the order dated 23 -12 -1954 and this was registered on 18 -1 -1955 as Miscellaneous Case No. 16 of 1955. On 204 -1955 the executing court allowed the application for review and held that the decree -holders had obtained a personal decree against the judgment debtor (petitioner) and they had a right to sell the other properties in execution of the personal decree. The executing court by a later order No. 35 of the same date restored the Execution Case No. 19 of 1954 to its file.