NANEKESHWAR PRASAD Vs. NAND GOPAL RAM

JUDGEMENT

(1.) This miscellaneous second appeal arises out of the following facts which have been well summarised by the lower, appellate Court: The judgment-debtors executed a usufructuary mortgage bond in favour of the respondents for a sum of Rs. 6411 on 16 March 1934, giving them possession over a certain house in the town of Arrah.

(2.) On 18 March 1934, just two days after the execution of the usufructuary mortgage bond they executed a kerayanama by virtue of which they held the house in their possession on payment of Rs. 48 as monthly rent. As there was a default in the payment of rent the mortgagees brought a suit for recovery of arrears of rent and obtained a decree in the execution whereof they proceeded to attach and sell the house mortgaged. The judgment debtors appeared on 9fch November 1940, and filed a petition under Order 41, Rule 6, Civil P.C., praying to stay the sale till the disposal of the appeal. On being asked to furnish security in cash by 22 November, 1940, to which date the sale was adjourned, they filed another petition on that date for three weeks time to pay the decretal dues after waiving all rights to fresh sale proclamation and other irregularities. The case was adjourned to 25 November 1940, for deposit of the security money.

(3.) On another petition being filed on that date the sale was adjourned to, 6th December 1940. On 4 December 1940, however, the judgment-debtors, i.e.,the present appellants, filed a petition under Order 34, Rule 14 stating that as the decree-holder was also the mortgagee of the house which was to be sold, the house could not be sold except by filing a mortgage suit for enforcement of the mortgage lien as contemplated by that rule.