SURENDRA NATH DUTT Vs. KUMAR MANMOTHA NATH MITTER

JUDGEMENT

(1.) THIS appeal is directed against an order by which the objections of the judgment-debtor to the execution of a mortgage decree have been overruled without any investigation. The decree was made so far back as the 20th January 1904. The execution with which we are concerned was applied for on the 5th June 1907 by the assignee of the decree. The decree-holder claimed to realise Rs. 1,50,956 and he annexed to his application for execution a schedule in which the accounts had been set out showing how this amount was arrived at. The judgment- debtor thereupon preferred objections to the execution and contended that a sum of only Rs. 90,922 was payable by him. At a later stage of the proceedings the money claimed by the decree-holder was brought into Court and satisfaction was entered on the decree. But it is obvious on the face of the proceedings that the judgment-debtor did not abandon his objection to the application for execution. The learned Subordinate Judge appears to have held that the remedy of the judgment-debtor was by way of a regular suit. In this view he was clearly wrong. In so far as some of the objections taken by the judgment-debtor are concerned, it is obvious that they fall within the scope of Section 244 of the Code of Civil Procedure of 1832; for instance, the judgment-debtor contended that he was entitled to a deduction of a larger sum on account of the transfer of certain properties by him to the decree-holder; he appears also to have contended that the interest was erroneously claimed at a higher figure than what was due. There is also the question as to the date upon which credit ought to be allowed for the consideration money for the transfer already mentioned. These and other questions of a like character are clearly covered by Section 244 and ought to have been determined by the learned Subordinate Judge. At the same time it must be stated that there are other objections taken by the judgment-debtor which upon the facts stated to us do not appear to come within the scope of Section 244. The Subordinate Judge, therefore ought not to have declined to investigate into the validity of the objections taken by the judgment-debtor on the ground that his remedy is by way of a regular suit.

(2.) THE result, therefore, is that this appeal must be allowed. THE order of the Court below set aside and the case remanded to the Subordinate Judge in order that he may take up the objections of the judgment-debtor one by one and determine in the first place which of the objections fall within the scope of Section 244, Civil Procedure Code. He will then proceed to investigate the validity of such of the objections as fall within the scope of that section. THE costs of this appeal will abide the result. We assess the hearing fee at five gold mohurs.