ASIA KHATUN Vs. NURJAHAN KHATUN

JUDGEMENT

(1.) This is an appeal by the judgment-debtors from an order of the Subordinate Judge of Backergunj dated 10 October 1931 by which he refused to set aside the sale in execution of a mortgage decree. The questions of law which fall for determination in this appeal depend on facts which have not been seriously disputed before us and which may be briefly stated. It appears that the respondents Nurjahan Khatun and others obtained a mortgage decree against the appellants Asia Khatun and others for a sum of Rs. 10,830-10-6 sometimes in the year 1928 and in execution of the said decree purchased the properties which formed the subject of the mortgage on 19 February 1930. On 19 March 1930 judgment-debtors 2 to 7 made an application to have the sale in execution set aside under Order 21, Rule 89, Civil P.C., and they deposited the decretal money with compensation. On 24 March following notices were issued on the mortgagees decree-holders and judgment-debtor 1 to show cause why the sale should not be set aside. In the meantime on 25 March Narendra Nath Gupta and others who had obtained a rent decree against the mortgagees decree-holders, attached the sum of Rs. 3,410-10-0 out of the money deposited under Order 21, Rule 89 by the mortgagors defendants 2 to 7, and on 26 May 1930 the Subordinate Judge after hearing the objections of the mortgagees decree-holders set aside the mortgage sale. On the next day the mortgagees decree-holders put in a petition before the Subordinate Judge asking the Court to stay the payment of Rs. 3,410-10-0 to Narendra Nath Gupta as they were intending to prefer an appeal against the order of the Subordinate Judge setting aside the sale to the High Court. They repeated this prayer for stay of payment in their application of 27 June 1930.

(2.) On 28 June 1930 the mortgagees decree-holders put in a further application in which they distinctly alleged that they did not admit that the amount deposited by the judgment- debtors under Order 21, Rule 89 belonged to them and they prayed that in the circumstances till it was decided by the High Court that the said money belonged to them, the attaching creditors could in no sense be entitled to the money on the footing that the said money belonged to them and they asked for time to bring an order for stay from the High Court. The Subordinate Judge who was dealing with both the rent execution case and the application under Order 21, Rule 89 directed that the sum of Rs. 3,410-10-0 be paid to the attaching creditors on their furnishing security and on 12 July 1930 the security was furnished and payment order was made in favour of the attaching creditors and the rent execution case against the mortgagees decree-holders in the present case was dismissed on full satisfaction. On 21 July 1930 the mortgagees decree-holders preferred an appeal to the High Court against the order of the Subordinate Judge setting aside the mortgage sale. The appeal was heard by the learned Sir George Rankin, C.J. and Pearson, J. Pearson, J., with whom the Chief Justice concurred allowed the appeal and made the following observations: In my judgment therefore this was not a good deposit under Rule 89 which entitled the judgment-debtor to have the sale set aside and prima facie, the order of the learned Judge cannot stand. It appears however that on 25 March 1930, a few days after the deposit, an attachment in execution was made of the deposit moneys to the extent of Rs. 8,410-10-0 by creditors holding, a decree against the decree-holders in the present matter. A certificate for payment of that amount was granted to the attaching creditors on 12 July 1980. In the circumstances this matter must go back to the lower Court for consideration of what effect, if any, this fact may have upon the present position and rights of the parties.

(3.) It appears therefore from the observations last quoted that the High Court remanded the case for consideration of the question as to what effect the fact of the attachment of Rs. 3,410-10-0 and of the payment of the same to the attaching creditors of the mortgagees decree-holders may have upon the rights of the parties. When the matter goes back on remand not only this question but also other objections to the sale in execution of the mortgage decree were raised before the Subordinate Judge. The Subordinate Judge rejected the application under Order 21, Rule 89, and the other applications made on 17 August 1931 by which the judgment-debtors 2 to 7 prayed that the mortgage decree may be held to be satisfied and that the sale and, purchase by the mortgagees decree-holders might be set aside. It is against, this order refusing to set aside the sale that the present appeal has been brought. The sale was attacked substantially on four grounds before the learned Subordinate Judge below and the same grounds have been repeated before us by the learned advocate for the appellants.