MAHABIR PRASHAD SINGH Vs. NOGENDRA NATH MANDAL

JUDGEMENT

(1.) This is a Rule granted by my learned brother and myself calling upon the opposite party to show cause why a certain order should not be set aside. The order in question is an order of the 27 of November 1920 made by the learned Subordinate Judge. The fasts of this case, which it is necessary for me to state, are as follows: It is alleged in the petition that the petitioner purchased the property in question on the 30 of November 1915 at a sale in execution of a decree for rent and obtained possession through the Court. It is then alleged that the judgment-debtor borrowed money from the decree holder; and, it now appear that the money was borrowed before the sale of 1915 on a promissory note; and it is else stated that there was an equitable mortgage. The decree-holder obtained his decree on the 17 of January 1917 for the sale of the above mentioned property and for the realization of the money. There was an application for execution in March 1918 and the sale was fixed for the 8 of July, 1918. Then a claim was put in by the petitioner---a claim to the properties in question. In the order-sheet of that safe appears this passage: "18 June 1918, One Mahabir Prasad Singh prefers claim of the entire properties attached. Register it. Pat up on 22nd June next for orders." I need not go through all the orders in the ease, but the decree holder appears to have taken no steps, and the result was that the execution case was dismissed for default. It is not clear whether the properties had in fast been attacked: I should infer from the previous order in that execution care that the properties, had not been attached, because I find on the 8 of May there was an order directing proclamation of sale to issue. However, in my judgment, it is not material to come to any final decision upon that point in this case. The first execution case having been dismissed, a second execution ease was instituted in 1920, and a sale proclamation was issued fixing the sale for the 13 of December 1920. But prior to that the petitioner lodged a petition on the 17 of November 1920. We are in-formed by the learned Vakil that the petition was lodged under the provisions of Order XXI, Rule 58 of the Civil Procedure Code. When the application was heard by the learned Subordinate Judge he declined to entertain the claim and to register it: and his judgment which is very short is as follows: "The execution is of a mortgage decree, and no attachment has bean effected; and so no claim is competent. That there was a claim before, which was allowed, does not I think stand in the way; for there might have been attachment in the other execution, treating it as a money decree: Joy Prakash Singh V/s. Abhoy Kumar Chund 1 C. W. N. 701. may be ailed in support of this view, and so I decline to entertain this claim and decline to register it" The strongest way, it seems to me, the ease could be put up for the petitioner is that the learned Subordinate Judge had jurisdiction to adjudicate upon this matter, and he declined to exercise his jurisdiction: and, consequently, we should have power to interfere under Section 115 of the Civil Procedure Code. The circumstances of this ease, I admit, do seem, to lead to a curious result, looking at them from one point of view. In the first execution ease the claimant lodged a claim to this property protesting against the execution of this decree, and upon such claim being con(sic)ideed by she Court the claimant succeeded and the first execution case was demisted. Now the decree-holder has again applied for execution of the decree and the Court has destined to entertain the petition of the petitioner.

(2.) In my judgment, however, we are bound to discharge this Bale on the authority of the case, Deefkolts V/s. Peters 14 c. 681. 7 Ind. Dec. (N. S.) 418. There the proceedings be way of claim were taken under Section 278 of the Civil P. C. which was then in force and which corresponded to Order XXI, Rule 58 of the present Civil P. C.. There the learned Judges distinctly bell that the procedure under that section was not applicable to a mortgage decree which contained a provision that the property in question should be sold. In this sate there is no doubt that the decree was what is called a mortgage decree, and contained a provision that this property should be told. Consequently, it was not open to the Execution Court to entertain and adjudicate upon a claim, which was recurred by the petitioner under Order XXI, Rule 58. The learned Judges in that case said as follows: "We thank that proceedings by way of claim are net applicable to a ease of this kind. Proceedings by way of claim are applicable only in cases of money-decrees where property of the judgmnu-debtor has been attached that is, where some property of the judgment-debtor is attested for the purpose of satisfying any general money claim, In that kind of claim it is clear that there should be some speedy remedy for the purpose of ascertaining whether the property claimed is the property of the judgment-debtor at all; but in a case like this, where the property has been dealt with to a solemn way by the decree of the Court, and has been declared liable to sale under the mortgage, that remedy would not be applicable." Then they proceeded to point out that the petitioner would have other remedies. On the authority of that case, which, to my mind, covers this case, we have no option but to direst that this Rule should be discharged with costs--hearing fee, one gold mohur. Richardson, J.

(3.) I agree.