JONES, A E Vs. RAM CHARAN

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an execution proceeding under rather peculiar circumstances. A final mortgage decree was obtained by the appellant decree-holder against the mortgagor on 9 April 1927. The decree awarded interest up to date and also gave to the decree-holder future interest.

(2.) The decree-holder filed an application for execution of the final decree, calculating interest which had been entered in the decree up to the date of the decree but omitted from his application the interest which had accrued subsequently. As the mortgaged property was ancestral the execution was transferred to the Collector under Schedule 3, Civil P.C. The mortgaged property was sold, and about Rs. 12,000 were realized. Out of this Rs. 8,845 were sent to the civil Court by the Collector in order to pay up the amount for which execution had been sought. Unfortunately the Collector disposed of the balance of the amount without any express instructions from the civil Court by paying Rs. 1,300 to an attaching creditor, Ram Charan and the balance of Rs. 1,700 to the judgment-debtor himself.

(3.) The mortgage suit had been brought more than six years after the mortgage and it is therefore not open to the mortgagee decree-holder to apply for a simple money decree under Order 34, Rule 6 and recover the balance of the amount from other properties of the mortgagor. There is one more complication, namely, that while the suit of Ram Charan against the mortgagor was pending in the Court of the Munsif, he applied for attachment before judgment of the sale proceeds in the hands of the Collector. The present decree-holder appellant intervened and objected to the attachment. His objection was disallowed; but Ram Charan undertook not to take out the money from the collectorate for some time so as to allow the mortgagee to have the Munsif's order set aside by a higher Court. No application was apparently made to get that order reconsidered. The result was that Ram Charan took out Rs. 1,300 and did not object to the payment of Rs. 1,700 to the judgment-debtor.