LAWS(PVC)-1930-3-90

MOTI CHAND Vs. MAHABIR PRASAD

Decided On March 17, 1930
MOTI CHAND Appellant
V/S
MAHABIR PRASAD Respondents

JUDGEMENT

(1.) This is a decree-holders appeal arising out of certain execution proceedings. A preliminary objection is "taken to the hearing of this appeal. It will be convenient to give the facts of this case before disposing of this objection. In 1913 a mortgage-deed was executed in favour of Raja Moti Chand by Dr. Bageshwari Narain and others for a large sum of money hypothecating several properties including a house described as house No. 40 in Chowk Allahabad. Three-fourths share in this house was subsequently purchased by Lala Madho Prasad. A suit was instituted on 17 August 1920 on the basis of this mortgage deed and was decreed in part by the first Court. Both parties appealed to the High Court where there was a compromise decree on 12 March 1926. Under this compromise it was agreed among other things that Mahabir Prasad would pay Rs. 13,500 to the plaintiffs and the plaintiffs would exempt the three-fourths share in this house which had been purchased by him. A decree was passed on the basis of this compromise for a consolidated amount of over Rs. 2,00,000 which was to be realised by sale of all the properties with the exception of the three-fourth share in this house. The preliminary decree was followed by a final decree which was prepared on 26 March 1927.

(2.) Another creditor of the mortgagors obtained a simple money decree in 1914 and in execution of that decree attached the one-fourth share in this house on 16 March 1925, while the appeal was still pending in the High Court. The attaching creditor was, however, not a party to that appeal. After the compromise decree he filed an objection in the execution Court to the effect that the mortgagee had released a part of the mortgage property and there ought to be a proportionate reduction in the amount of the mortgage money. This objection was filed on 15 September 1927 and the prayer was in the following words: One-fourth share of house No. 40 aforesaid purchased by the objector petitioner may not be sold and Rs. 100 or any other proportionate mortgage money may be ordered to be paid to the decree-holder.

(3.) After hearing the parties the Court first passed an order on 9 June 1928 stating that the mortgagee having released three-fourths of the share and also another property had split up the mortgage and therefore the objector was entitled to get the mortgage debt apportioned; it ordered: The parties should give the market value of the different portions of the mortgaged property in different hands within 15 days.