HABIB Vs. DAULATRAM

JUDGEMENT

(1.) This is an execution first appeal by the decree-holders Habib and others against a judgment of the Civil Judge, Bhilwara, dated 26-4-1954.

(2.) The appellants are mortgagees. The respondent judgment-debtors executed a mortgage on 22-7-1947, of a house in favour of the appellants for a sum of Rs. 40,000/-. On the same date the mortgagees leased back the house to the judgment-debtors who executed a rent-note whereby they agreed to pay a sum of Rs. 200/- as rent to the mortgagees. The mortgagors failed to pay the stipulated rent with the result that the mortgagees brought a suit and obtained a decree for Rs. 6200/-, as rent, on 2911- 1952. The mortgagees in execution of this decree attached the house. The judgment-debtors raised the objection that it was not open to the decree-holders to bring the property in question to sale, as such a sale was forbidden by the provisions of Order 34, Rule 14, C. P.C. The case of the judgment-debtors was that there was an understanding between the parties (although there was no mention thereof in the mortgage deed) that interest was to be paid on the sum borrowed at the rate of eight annas per cent, per mensem and on that computation the interest amounted to Rs. 200/-per mensem, and rent was accordingly fixed at that figure and a lease was executed on the same day as the mortgage. It was, therefore, argued that the mortgage deed and the lease were part and parcel of the same transaction and the claim under the lease was a claim arising under the mortgage and that consequently the provisions of Order 34, Rule 14 were clearly attracted. The decree-holders' reply was that Order 34, Rule 14 was not applicable in the circumstances of the case, and that in any case the judgment-debtors were prevented by the rule of waiver and this was during the course of arguments before us developed as the rule of constructive res judicata, from raising their objection as to the sale of the mortgaged property. The executing court held that the provisions of Order 34, Rule 14 were applicable to the sale in question as the mortgage and the lease formed part of the same transaction and the decree arising out of the lease was one which arose under the mortgage. That court further held that although several adjournments had been sought on behalf of the judgment-debtors for a compromise between the parties and for making an application under Order 21, Rule 83, C. P. C., for raising money by private sale of the mortgaged property, the judgment-debtors were not barred from raising the objection as to the non-sale ability of the property under Order 34, Rule 14. Consequently, the executing court allowed the objection. This appeal has been brought by the decree-holders from that order.

(3.) Learned counsel for the decree-holders raised the same contentions before us in this appeal as before the Court below. We propose to consider first the contention relating to Order 34, Rule 14, C. P.C. The material portion of this rule is in these terms: