SITA RAM Vs. LACHMAN LAL GOSWAMI

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an appellate order rejecting his objection under Section 47, Civil P.C. The decree under execution was a money decree for Rs. 2591-13-0 passed in a suit brought on the basis of two mortgage bonds executed by the judgment-debtor. In the suit the minor son of the judgment-debtor who was impleaded took the objection that the mortgage was not binding on the joint family, as the debt had not been contracted for family necessity. The Court found that legal necessity was established with respect to a sum of Rs. 95-15-3 and it passed a mortgage decree for that amount. As regards the remaining sum of Rs. 2591-18-0 it found that there was no legal necessity and therefore passed a money decree for that amount. In execution of this money decree the decree-holder prayed for attachment and sale of the mortgaged property. The judgment-debtor took the objection that the mortgaged property could not be sold in view of the provisions of Order 34, Rule 14, Civil P.C. This objection was upheld by the Munsif, but on appeal it was negatived by the learned District Judge. The question depends entirely on a construction of Order 34, Rule 14, Civil P.C. which runs as follows: Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.

(2.) Mr. Sarjoo Prasad contends that the money decree which is sought to be executed is a "decree for the payment of money in satisfaction of a claim arising under the mortgage" within the meaning of this rule. But the plain language of the rule obviously implies that the claim arising under the mortgage must be a claim for which the mortgage is still enforceable and upon which a suit for sale could be brought. Where a suit for sale on the basis of the mortgage has already been brought and a decree for sale has been refused, it is impossible to hold that in such a case the provisions of Order 34, Rule 14 could have any application. In the present case the effect of the decision in the mortgage suit was that so far as the sum of Rs. 95-15-0 was concerned, it was a valid mortgage debt and as regards the other sum of Rs. 2591-18-0 it was merely a personal debt. That being so, the claim with respect to Rs. 2591-13-0 could not be regarded as a claim arising under the mortgage. The very provisions in Order 34, Rule 14 which permit the institution of a fresh suit notwithstanding anything contained in Order 2, Rule 2 clearly imply that the mortgagee had a right to sue for sale on the basis of the mortgage, but did not sue. Upon the facts of the present case, the provisions of Order 84, Rule 14 have, to my mind, no application at all. There is no decision of a Division Bench of any Court directly in point, but there is a decision of a single Judge of the Allahabad High Court in Hurmat Singh V/s. Ganga Narain ( 25) 22 A.I.R. 1935 All. 507 where the facts were similar to those of the present case. In that case Niamatullah, J. held that: Where a suit is brought on a mortgage on the joint family property executed by the father and the mortgage is found to be not for legal necessity to a certain extent and the mortgage is declared invalid but a simple money decree for such amount is passed against the father, the decree-holder can in execution of the decree so obtained attach and sell the property covered by the mortgage and Order 34, Rule 14 is no bar to his so doing.

(3.) This, to my mind, is a correct statement of the law. Mr. Sarjoo Prasad on behalf of the appellant relies on the decisions in Kadma Pasin V/s. Muhammad Ali ( 19) 6 A.I.R. 1919 All. 435, Khan Chand V/s. Ghaaita ( 31) 18 A.I.R. 1931 All. 350 and Gobinda Chandra V/s. Kailas Chandra ( 18) 5 A .I.R. 1918 Cal. 705. In the first two cases there was no suit brought on the mortgage and the decision proceeded on the footing that the money decree, execution of which by sale of the mortgaged property was held to be barred under Order 34, Rule 14, did not bar a suit for sale. In the third case the decision was based on the ground that the decree in effect said that. he could not have a sale of the property without a suit under Section 67, T.P. Act, and he is seeking to avoid the effect of that decree by an order in execution.