SHACHEENDRABHOOSHAN RAY Vs. PRAMATHANATH RAY

JUDGEMENT

(1.) This appeal arises out of a sale in execution of a mortgage decree. The mortgagor had mortgaged a one-sixth share in certain property, and in the sale proclamation it was stated that this one-sixth share of the property, which belonged to the judgment debtor, would be sold. Subsequently however a third party brought a suit against both the decree-holder and the judgment-debtor in this suit, stating that a part of the property belonged to him, and all that the judgment-debtor owned was a 12 share. That suit having been filed, an application was made to that Court asking for an injunction restraining the sale of the share of this property claimed by the plaintiff in that suit. An injunction was granted and communicated to the executing Court with the result that that Court made an order that the sale proclamation should be sent to the nazir for sale with the direction that a 12 share only of the properties mentioned therein should be sold. On this an application was made under Section 47, Civil P. C, by the judgment-debtor, which is described by the Subordinate Judge as being one praying for stay of sale of this one-twelfth share. The real effect of the application however seems to have been that the judgment-debtor contended that the Court had no jurisdiction to allow the sale to proceed of the one-twelfth share only, and that, in view of the order of injunction made by the other Court, the executing Court ought not to proceed with any part of the sale of the judgment-debtors property. The Subordinate Judge disagreed with the contention raised on behalf of the judgment, debtor and we are of opinion that his decision was right. No authority bearing on the point had been cited before him and no authority has been cited before us.

(2.) In principle, we can see no objection to the sale proceeding in respect of the remaining part of the judgment-debtor's property. There seems to be sound reasons in law why the judgment-debtor's application ought to be refused, because, in view of fact that the injunction granted only applies to half of the property mortgaged, no bar has been imposed by the Court against the decree-holder proceeding with the execution of his decree, so far as the balance of the property is concerned. Therefore there is no order of the Court, which will prevent limitation running against the decree-holder, with regard to this portion of the property. For this reason alone, it appears to us that the decision of the learned Subordinate Judge was right. The argument, raised to the effect that the sale of a small share of this property would have the result of lessening its value in the market, is one which might have been considered by the learned Judge, if he had been disposed to exercise his discretion in the matter and make an order staying the sale. Whether or not this point can be raised in the proceedings now pending under Order 21, Rule 90 of the Code, we do not at present decide. This appeal is accordingly dismissed with costs three gold mohurs. Nasim Ali, J.

(3.) I agree.