M A SREENIVASA AIYANGAR Vs. CUNDASAMI NAICKER

JUDGEMENT

(1.) The City Civil Judge has dismissed the application of the plaintiff for a personal decree against the 1st and 2nd defendants under Order 34, Rule 6 of the Code of Civil Procedure on the ground that the plaintiff failed to bring the mortgaged property to sale in execution of the decree under Order 34, Rule 5 of the Code of Civil Procedure obtained by him. The 1st defendant privately sold the property to the decree-holder for Rs. 500/ which in his application for a decree for the balance under Order 34, Rule 6 he has credited towards the decree amount.

(2.) Order 34, Rule 5 directs the sale of the mortgaged properties and the application of the sale proceeds in the manner indicated therein and it is only where the net proceeds are found to be insufficient to discharge the decree debt that the plaintiff is entitled to ask for a decree under Rule 6. These provisions no doubt contemplate a judicial sale for the decree amount and a decree for the balance. But it is clear that it is open to a judgment-debtor to stop the sale by payment of the debt or by adjustment duly certified to the Court. Such adjustment may be made by a private sale. Nor is there any reason for not recognising a payment in part or a partial adjustment as between the parties thereto. The 1st defendant who sold the property does not dispute the plaintiff s claim ; so far as he is concerned the sale in our opinion should be recognised and it follows that the plaintiff is entitled to a decree against him for the balance.

(3.) So far as the 2nd defendant is concerned the sale is not binding on him. He is entitled to insist upon the procedure prescribed by the Code of Civil Procedure being followed. He is not a party to the sale and his right to apply for the execution of the decree under Order 34, Rule 5 cannot be taken away by the sale of property by the 1st defendant. No decree therefore can be passed against him under Rule 6. In the cases cited, the contesting judgment-debtor was a party to the sale and in the case in Udit Narain Singh v. Bagar Sajjad (1905) 2 A.L.J. 353 after the private sale, there was a court sale for the balance. They have no application to this case so far as the 2nd defendant is concerned. We confirm the order and dismissing the appeal as against the 2nd defendant with costs. We reverse the order so far as the 1st defendant is concerned and direct the City Civil Judge to restore the application to his file and dispose of it according to law. The costs will be provided for in the final order or decree.