RAJKISHORE PRASAD SINGH Vs. CHHOTEY NARAYAN

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Gaya, dated 14th July 1932 dismissing an application to set aside a sale held in execution of a decree passed in a suit based on certain mortgage deeds. The appellant before this Court is one of the judgment-debtors, who was defendant 8 in the original suit and happens to be the transferee of a 2-annas share in village Nazardih the subject matter of the present appeal. Defendant 1 of the original suit was the mortgagor who had executed five mortgage deeds in favour of the decree-holders on different dates. Village Nazardih was included in the properties comprising the second, third and fourth mortgage deeds executed respectively on 22nd April 1914, 6 January 1916, and 7 March 1916. A preliminary decree was drawn up in the suit on 1 September 1926, and the final decree was passed on 25th February 1928.

(2.) In execution of the decree, village Nazardih, amongst other proper, ties, was put up for sale and was purchased by the decree-holders with the permission of the Court on 8 July 1931. On 7 August 1931, the judgment-debtors filed an application before the Subordinate Judge under Order 21, Rule 90, Civil P.C., to set aside the sale, and their petition having been rejected, defendant 8, one of the judgment-debtors, has preferred the present appeal to this Court. Mr. Manohar Lal, on behalf of the appellant, contends that village Nazardih should not have been sold and that the properties comprised in the first and the fifth deeds should have been sold first and that this village should not have been saddled with the expenses in connection with properties included in the deeds in which it was not mentioned.

(3.) In my opinion, the argument cannot prevail inasmuch as the preliminary decree did not mention the order in which the properties were to be sold. The preliminary decree was to the effect that the suit be decreed with costs and interest at the stipulated rates until six months and future interest at 6 per cent. per annum until paid, that an account be made of the sums found due to the plaintiff's under each of the mortgage bonds in suit with their proportionate costs, that the defendant do pay the sums found due to the plaintiffs under each of the mortgage bonds in suit with proportionate costs, and that in default thereof the mortgaged properties be sold in satisfaction of the decree.