PT RAM CHARAN Vs. PARMESHWAR DIN

JUDGEMENT

(1.) This is a decree-holder's appeal and arises in the following circumstances: The appellant was a mortgagee under a deed, executed by one Noorul Hasan and instituted suit-No. 57 of 1923 for the enforcement of his mortgage by foreclosure, and obtained a preliminary decree ex parte. Subsequently the ex parte decree was set aside and after contest another preliminary decree for foreclosure was passed on 30 September 1924. During the pendency of the foreclosure suit Noorul Hasan, executed a deed of usufructuary mortgage in favour of the respondent, Parmeshwari Din, on 15 February 1924. Subsequently, on 25th. February 1928, Parmeshwari Din purchased Noorul Hasan's equity of redemption in execution of a simple money decree. The appellant made his application for final decree sometime after 25 February 1928, mentioning Parmeshwari Din, as one of the opposite party in the heading of his application. On 28 July 1928, when the application was heard, he discharged Parmeshwari Din, and the Court recorded an order to that effect. A final decree for foreclosure was passed on the same day. The decree-holder obtained delivery of possession against Noorul Hasan on 29th March 1929, in execution of hi? decree.

(2.) In the mutation proceedings which followed, disputes arose between the appellant and Parmeshwari Din, who had obtained entry of his name in the Record of Rights. Apparently the decree-holder was unsuccessful in having the name of Parmeshwari Din expunged. Thereupon he made a second application for execution of decree on 21 August 1930, praying that delivery of possession be made as against Parmeshwari Din, who is bound by the final decree passed against Noorul Hasan, he being a transferee pendente lite. Parmeshwari Din objected to any proceedings in execution being taken against him. His principal pleas were that, as he was no party to the foreclosure decree, no execution could be taken out against him and that the decree having been once executed, a second execution was not permissible. It was also contended that an application of the kind made by the appellant was not maintainable and that his only remedy was to institute a regular suit. This last mentioned plea found favour with the lower Court. Accordingly the appellant's application was dismissed, and he was directed to seek his remedy by a regular suit. The learned advocate for the appellant argued that Parmeshwari Din, having taken a mortgage and having purchased the equity of redemption of Noorul Hasan, during the pendency of the foreclosure suit, was bound by the decree which was eventually passed against his transferor, Noorul Hasan, and that the transfers in his favour cannot affect his rights under the decree to any extent.

(3.) We are clearly of opinion that this contention is sound. Section 52, T.P. Act, lays down that, during the active prosecution in any Court of a contentious suit in which any right to irremovable-property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. It is not suggested that permission of the Court was obtained for cither of the two transfers in favour of Parmeshwari Din. It cannot be doubted that the foreclosure suit was a contentious one. It is equally undeniable that the mortgaged property was directly and specifically in question in the foreclosure suit. It is clear that the transfers taken by Parmeshwari Din cannot in any manner affect the rights of the decree-holder, the appellant before us. One of his rights under the decree in the foreclosure suit was to extinguish Noorul Hasan's right of redemption and to obtain actual possession of the mortgaged property. If Parmeshwari Din's objection as regards the appellant's right to take possession in execution of his decree be allowed to prevail, his (the decree-holder s) rights under the foreclosure decree-would be materially affected. In this view the appellant was entitled to execute his decree not only against Noorul Hasan, but also his transferee pendente lite, Parmeshwari Din. A number of technical objections have been raised before us. First, it is contended that Section 47, Civil P.C., does not apply, and consequently the order of the lower Court cannot be the subject of an appeal to this Court. In our opinion this contention has no force. That Parmeshwari Din, is a representative in interest of Noorul Hasan can admit of no doubt. The question arises between the decree-holder on the one side and the representative of the judgment-debtor on the other. The controversy between the parties is clearly one relating to the execution of decrees. In fact, the appellant's application for execution of decree was resisted by the respondent. We think that Section 47, Civil P.C. is fully applicable and that an appeal to this Court is competent.