KHAN CHAND Vs. GHASITA

JUDGEMENT

(1.) This is a second appeal within the cognizance of a single Judge of this Court. Our brother Sen has certified it to be fit for hearing by a Bench of two Judges. That is how the appeal has come for hearing before us. This appeal is instituted by certain judgment-debtors. They are judgment-debtors under a simple money decree which was obtained by the creditors on foot of a mortgage of 1908. One Chet Ram had executed a usufructuary mortgage in favour of the ancestors of the decree-holders. The objectors (judgment-debtors) are some of the successor-in- interest of Chet Ram, we were told that two-thirds of the mortgage had been redeemed and the mortgagees sued on the basis of the mortgage for recovery of one-third of the amount of the mortgage and obtained a simple money decree. The decree was prepared in the following terms: Suit is decreed with costs against the assets of Chet Ram in the hands of the defendants who will be entitled to recover possession of the mortgaged property comprised in this mortgage-deed dated 14 February, 1908 and which is still in possession of the plaintiffs under their decree. The plaintiffs will have no title or concern left with the mortgaged property after the passing of this decree. The plaintiffs will get six per cent. pending and future interest.

(2.) In execution of this simple money decree the decree-holders put to sale the property mortgaged under the mortgage of 1908. The judgment-debtors objected and pleaded the bar of the provisions of Order 34, Rule 14, Civil P.C. The first Court accepted the objection and dismissed the application for execution. This decree however was set aside by the Court of first appeal.

(3.) In this second appeal the same point is again raised that the execution of the decree in the manner in which it was sought was barred by the provisions of Order 34, Rule 14, Civil P.C. It will be sufficient to quote the provisions of that rule to see that those provisions apply to the present case: Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to -sale otherwise than by instituting a suit for -sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.