CHANDA Vs. BILLAM KANWAR

JUDGEMENT

(1.) THIS is an appeal by the judgment-debtor against the order of the District Judge, Jodhpur, dated the 4th of October, 1951.

(2.) THE respondent decree-holder Mst. Billam Kunwar obtained against the judgment-debtor appellant a preliminary decree on the 13th November, 1949, and the final decree on the 13th March, 1950, for sale of the mortgaged property. THE decree-holder then presented an application for execution of the decree". THE sale proclamation was first made on 25th November, 1950. THE property was auctioned for several days in the month of January, 1951 but the sale could not be finalised. It was again put to auction on the 10th, 11th and 12th March, 1951. On the 13th March, 1951, the judgment-debtor presented an application to the effect that the property which was mentioned in the sale proclamation was different from the one stated in the mortgage-deed, that instead of selling the property as described in the mortgage-deed the Amin of the court was, at the instance of the decree-holder, selling away another house of a totally different description which was in the possession of the judgment-debtor and, therefore, he should be directed not to sell that house. THE executing court made an enquiry into this application. THE decree-holder admitted in that court that the boundaries of the house as mentioned in the sale-proclamation, the decree, the plaint, and the patta, were not correct, that the original mistake started from the patta and it crept into the mortgage-deed, the plaint and the decree, that the mortgage-deed contains description of the inside of the house, that the mortgage in fact related to the very house which was in the possession of the judgment-debtor and which was being auctioned, and since the judgment-debtor was only delaying the execution of the decree on the ground of a technical mistake, he should not be permitted to do so. After hearing the arguments of both the parties, the District Judge allowed the decree-holder to prove what property was actually mortgaged.

(3.) THE same view was taken in the case of Bala Debi vs. Bon Behari Roy (2) (A. I. R. 1952 Cal. 86) and both the cases cited above were relied upon.