UDIT NARAYAN JHA Vs. MUSAMMAT JASODA SAHUN KALAN

JUDGEMENT

(1.) Musammat Nainabaty, a Hindu widow in possession of the estate of her husband, and the next reversioner, who is the appellant before us, jointly executed a mortgage-bond on which the creditor obtained a decree against both and executed the same against both, claiming interest at the bond rate until actual payment. Nainabaty alone made an objection as regards interest subsequent to the period of grace but her objection was disallowed and an appeal to the High Court was filed but withdrawn. The two judgment-debtors then jointly sold a part of the mortgaged property by private sale under the sanction of the Court and satisfied a part of the decree. The decree was then sold to the respondent, who applied for execution claiming interest at the same rate as the original decree-holder: pending execution Nainabaty died and the appellant was substituted in her place: as he was already a judgment debtor on the record as a reversioner, this order of substitution must mean that he then became a judgment-debtor in his own right as full owner. He now filed a fresh objection on the ground that the decree- holder was not entitled to interest after the period of grace under the terras of the decree: about the same time he filed an application for the amendment of the decree on the ground that it was not in accordance with the judgment. These two proceedings were run as alternative proceedings, so that if the one failed the other might be fought out. Both the applications were rejected and we have before us the miscellaneous appeal in the objection case under Section 47 and the Rule in the amendment case.

(2.) The first question that suggests itself on the facts stated is one of the competency of the present proceedings. The appellant Udit Narain was a party to the decree and a party to the execution: can he re-open matters settled by orders made prior to the death of Nainabaty? I think there is a fallacy involved in the question. The Udit Narain that was a party before the death of the widow in possession was merely the presumptive reversioner Udit who had no present interest in the property in dispute, who had a mere contingent interest, a mere spes successionis which he could not dispose of: his right was contingent on his surviving the widow and might never come into being. The Udit Narain who has initiated these proceedings is the present heir of the last male owner and is fully clothed with all the rights of a proprietor. The identity is only in the name and not in the title or the character; so far as these are concerned he is quite a different man. I think he is entitled to defend his newly acquired title by all means accessible, to his new character. Coming to the merits, I find that the ordering portion of the judgment was: "The principal amount is to bear interest at the rate stipulated in the bond and the costs to bear interest at 6 per cent. per annum, should the defendant 1st party make default to pay the decretal amount within 6 months from this date it shall be realised by the sale of the mortgaged properties".

(3.) The decree gives the (1) principal with interest at the bond rate up to date of, suit, (2) interest at the bond rats from date of suit to the date of realization, (3) interest on the interest at 6 per cent. per annum from date of suit to date of realization, (4) interest on costs at 6 per cent. per annum from date of decree to date of realization, (5) costs, and then orders that if they fail to pay the whole of the decretal amount within the period fixed by the Court (6 months) the decretal amount would be realized by the sale of the mortgaged properties.