SHAMBHUSING SUJANSING THAKOR Vs. MANUAL VADILAL GANDHI

JUDGEMENT

(1.) This is an appeal arising out of execution proceedings. The appellant is defendant No. 1 and the respondent No. 1 is defendant No. 2.

(2.) The facts are that the appellant Thakor Shambhusing Sujansing had mortgaged his property to the firm of Doshi Shamaldas Jethabhai represented by one Kantilal. On this mortgage there was an award followed by a decree for Rs. 13,000 and odd. Subsequent to this award, which is on August 25, 1926, Shambhusing executed a second mortgage in favour of the plaintiff in this suit Dajibhai Bhagvandas. There was another firm known as Manilal Vadilal in which a pleader named Nagindas was a partner. He was the pleader for the mortgagee Kantilal in the execution proceedings which followed the award-decree. The date of the second mortgage to Dajibhai Bhagvandas is November 21 1926. Subsequently, by one document dated June 18, 1928, the first mortgagee sold his rights to the firm of Manilal Vadilal and the mortgagor Shambhusing sold his equity of redemption to the same person and thus the first mortgage was extinguished, and the firm of Manilal Vadilal became the owners of the property, but the second mortgage of Rs. 6,000 was still outstanding. On the second mortgage Dajibhai Bhagvandas brought a suit No. 30 of 1928, defendant No. 1 being Shambhusing the mortgagor, the present appellant, and the present respondent No. 1 being Manilal Vadilal defendant No. 2. Mr. Nagindas appeared for both the defendants. There was a compromise between the parties by which defendant No. 2, that is, the firm of Manilal Vadilal, undertook to pay the mortgage amount by three instalments of Rs. 1,500 Rs. 2,000 and Rs. 2,000, defendant No. 1, that is the mortgagor, to be personally liable for any balance, and by this decree it was also provided that on payment of the sum by defendant No. 2 to the mortgagee defendant No. 2 should recover it from defendant No. 1. This decree is dated June .27, 1929. Subsequently, the parties, i.e., the defendants, quarrelled. There were various civil and criminal proceedings between them and ultimately the present darkhast was presented on September 19, 1930, by which defendant No. 2 having paid the money of the first two instalments sought to recover it from defendant No. 1 original mortgagor.

(3.) Various contentions were raised by defendant No. 1. The First Class Subordinate Judge of Nadiad decided three preliminary issues: (1) Whether the decree is a legally executable one, (2) an issue as regards Court fees with which we are not concerned, and the third under Section 138 of the Transfer of Property Act with which also we are not now concerned. On the first issue which is the only one that arises now he held that the decree was legally executable. So far as regards the contention set up by Shambhusing alleging fraud and undue influence the Judge held that the only remedy for setting aside the consent decree is by suit or review of judgment. That position is conceded in appeal and the only point which has been argued at considerable length is this; whether part of the decree is foreign to the suit and inoperative or not, in other words, can defendant No. 2 execute the decree?, The question with which this appeal is concerned is one arising under Order XXIII, Rule 3, and relates to the last line of that Order the Court shall pass a decree in accordance therewith, so far as it relates to the suit." The question then is whether that part of the decree which directs that defendant No. 2 should recover from defendant No. 1 the amount which he pays under the decree to the plaintiff the mortgagee, goes beyond the claim in the suit. There are very numerous decisions on this point but on a reference to them it will be found that each case has been decided on its own particular facts.