NARSINGDAS Vs. BIRJU LODHI

JUDGEMENT

(1.) THE appellants had brought a suit against the respondent Birju on a mortgage executed by Birju and his brother Bisram on 12th December 1914 in their favour. A decree for foreclosure was passed by the Judge of the trial Court, but on appeal the Additional District Judge held that the mortgage was void under para. 11, Schedule 3, Civil P. C., as it was executed during the continuance of proceedings before the Collector and that the Collector's permission had not been obtained. They have therefore preferred this second appeal. I am clearly of opinion however that the view taken by the lower appellate Court is wrong and that the mortgage should not be held to be void under para. 11, Schedule 3, Civil P. C. Admittedly one Narain Shridhar Naik of Umrer had obtained a decree against Bisram and Birju, and property belonging to them was attached and a "C" form was sent to the Collector on 11th August 1914. The Collector started sale proceedings with regard to a 7 annas share and the sale was fixed for 12th December 1914. The mortgage in suit was executed on that date, and out of the consideration Rs. 1,050 were paid before the sub-Registrar for payment to the decree-holder. Unfortunately the Collector's proceedings have been destroyed, but from the copy of the register filed as Ex. P-1 it can be ascertained that the decree-holder Narain Shridhar Naik appeared on 14th December 1914 and filed a receipt in satisfaction of his full claim.

(2.) THE case was then struck off as fully satisfied. Now this information to the Collector amounted to a due certificate of the adjustment of the decree. As stated above, the proceedings in the Collector's Court have been destroyed, but it would seem almost certain that permission must have been obtained from the Collector for a transfer, which was executed only two days before the certifying of the payment and which was executed to satisfy the decree. Further, when the payment was made on 12th December to the decree-holder, the decree was satisfied although the payment was not certified to the Court until two days later. The mortgage, then, which was executed on the 12th, the day on which the decree was satisfied, was not void, because the proceedings in the Collector's Court pre suppose a decree, which had to be satisfied and was therefore capable of execution. It cannot be said, I think, that a decree which has been fully satisfied out of Court is one that is capable of execution. I would refer in this connexion to Khushalchand v. Nandram Sahebram (1911) 35 Bom 516. It is, I think, moreover quite clear that the respondent Birju, who was the judgment-debtor in the Collector's proceedings and the decree against whom was satisfied by the mortgage, cannot now be heard to plead that the mortgage was void.

(3.) IN the present case I have hold that owing to the payment out of Court on 12th December the decree was satisfied and the Collector could not exercise any of the powers conferred upon him by the Code and that therefore the incompetency of the judgment-debtor to mortgage his property ceased. I would add that a similar view has been taken by a Bench of this Court in Nandlal v. Amboprasad, . I therefore hold that the mortgage executed by the judgment-debtor Birju and his brother Bisram on 12th December 1914 is not void and, as there are points raised in the appeal to the lower appellate Court that were not decided by the Judge, I remand the appeal to that Court for a fresh decision. The cross-objections made by the plaintiffs, who were respondents in the lower appellate Court, must also be considered again. Costs of this appeal will be borne by the respondent. Other costs will follow the result.