UMESHWAR PRASAD SINHA Vs. DWARIKA PRASAD

JUDGEMENT

(1.) This is a judgment-debtor's appeal from the decision of the learned District Judge of Darbhanga affirming that of the Munsif, second Court, of the same place, in execution proceedings. The facts leading up to this appeal are as follows: On 1st March 1935 the appellant's family executed what has been called a sudbharna (usufurctuary) mortgage bond in favour of the respondent for the sum of Rs. 14,400, purporting to give possession of certain raiyati lands, about 84 bighas in area, as also of certain proprietary shares in a number of estates. Subsequently, on 8 April 1935, the mortgagee e executed a deed of lease (patta) in favour of mortgagor 1, who is the only adult per. son amongst the mortgagors, in respect of the entire mortgaged properties at the annual rent of Rs. 432, which sum works out to be the interest on Rs. 14,400/ at 3 per cent, per annum, the rate of interest stipulated in the mortgage bond aforesaid. The mortgagors failed to pay the stipulated sum of Rs. 432 annually as aforesaid with the result that the mortgagee instituted a suit for money and obtained, judgment in his favour for the sum of Rs. 1, 648 odd. The decree for money was put into execution, being execution case No. 407 of 1941, and the decree-holder attached to sell the equity of redemption of the judgment-debtor, appellant before us, in respect of the entire raiyati lands mortgaged as also two items of zamindary property which are some of the mortgaged properties.

(2.) The judgment-debtor took objection under Section 47, Civil P.C., to the execution, chiefly on the grounds: (1) that the price suggested, by the decree- holder for the properties proceeded against was wholly inadequate; and (2) which is the more serious of the objections raised, that the execution is not maintainable in view of the provisions of Rule 14 of Order 34, Civil P.C. The execution Court negatived both these objections holding that the valuation suggested was quite fair, and that Rule 14 of Order 34, Civil P.C., had no application to the facts of the present case, relying chiefly on the decision of this Court in Ramnarayan Singh v. Bishvanath Missir A.I.R. 1920 Pat. 723. The unsuccessful objector judgment- debtor preferred an appeal to the District Judge of Darbhanga who dismissed the appeal holding that he was bound by the decision of this Court referred to above and not of the other High Courts. Hence this second appeal. Counsel for the appellant has contended, in the first place that as it is a matter between the mortgagor and the mortgagee, Rule 14 of Order 34 comes into operation irrespective of the consideration whether the mortgage bond aforesaid and the lease under which the decree had been obtained were or were not parts of the same transaction; and secondly, that the two documents were parts of the same transaction, and therefore, the decree-holder could not sell the equity of redemption of the judgment-debtor in some of the mortgaged properties, but that he should have brought a suit for sale in enforcement of the mortgage bond itself inasmuch as the decree, though in form a money decree, was really one for the interest accruing due in respect of the mortgage.

(3.) It is obvious that the determination of this case depends entirely upon the construction of the words of Rule 14 of Order 34, Civil P.C., and particularly, whether the claim in the money suit aforesaid could be said to have arisen under the mortgage. The first contention raised by counsel for the appellant may be disposed of at once by saying that there is no warrant for the conclusion that simply because the claim has arisen between two parties who also happen to be mortgagor and mortgagee in respect of certain dues arising from the possession of the mortgaged properties the claim under the money decree could be said to have arisen under the mortgage. In my opinion, the contention is too broadly stated to be acceptable. No authority has been cited before us in support of this sweeping proposition of law. There is neither principle nor authority behind this contention which would make the position of mortgagees very difficult indeed.