MT KHAIRUNNISSA BIBI Vs. OUDH COMMERCIAL BANK

JUDGEMENT

(1.) This appeal has been referred to us by a Bench of two learned Judges of this Court because the point involved is of importance and it was thought necessary that the law on the point should be laid down by a Full Bench.

(2.) The facts of the case will have to be stated at some length in order to appreciate the point or points of law that arise.

(3.) The Oudh Commercial Bank obtained a decree for sale in Suit No. 50 of 1913 of the Court of the Subordinate Judge of Fyzabad against Riasat Husain and Saleha Bibi. The suit was based on a mortgage bond. The final decree in the suit was passed on 16 December 1915. Execution was taken out and Khairunnissa Bibi, who is the appellant before us, was impleaded as an heir to one of the deceased judgment-debtors. She however it appears claimed some of the property mortgaged in her own right and therefore she instituted a suit, being Suit No. 383 of 1923, in the Court of the Subordinate Judge at Azamgarh, to obtain a declaration that she was not bound by the decree No. 50 of 1913 obtained in the Court of the Subordinate Judge of Fyzabad by the Oudh Commercial Bank. Her suit was dismissed on 18 April 19,25 and she filed a first appeal, being Appeal No. 313 of 1925, in this Court. The Oudh Commercial Bank having taken out execution of the decree No. 50 of 1913 obtained by it, Khairunnissa Bibi applied to this Court for an order of injunction restraining the Oudh Commercial Bank from executing its decree. In the course of the consideration of the applications. It transpired that a part of the decree obtained by the Oudh Commercial Bank did not carry any interest and it was pointed out to the Court, on behalf of the bank, that if the execution of the decree was stayed, the bank would suffer loss of interest. The amount which did not carry interest was about Rs. 27,000 and the learned Judges of this Court calculated that in the course of the average period of the pendency of a first appeal the Oudh Bank would lose a sum of Rs. 6,000 in interest, the sum being calculated at 6 per cent per annum. The plaintiff was told that her application for stay of execution would be granted if she executed a security bond in a sum not less than Rs. 6,000 to secure the loss of interest. Such a security bond was furnished on 14 May 1926 and the execution of the decree No. 50 of 1913 was stayed, by issue of a temporary injunction.