HOSHIAR SINGH Vs. GOBARDHAN DAS

JUDGEMENT

(1.) This is an appeal by Hoshiar Singh and Kabool Singh decree-holders from an order passed by the learned Additional Subordinate Judge, Muzaffarnagar remanding an appeal to him by Gobardhan Das whose connexion with the decree under execution will be presently shown. One Tarif who was indebted to the respondent, Gobardhan Das, executed a deed of simple mortgage on 1 May 1924, in favour of the appellants. Subsequently, on 3 May 1924, Tarif executed a deed of sale in respect of the name property in favour of Balwant for Rs. 9,000, part of which was left with the vendee for satisfaction of the mortgage in favour of the appellants. Gobardhan Das obtained a simple money decree against Tarif and proceeded to attach the property which, wan the subject of the mortgage and sale above referred to. In course of the execution proceeding he came in conflict with Balwant. This led to suits under Order 21, Rule 61, C.P.C., in which it was decided that the sale-deed in favour of Hal want was not valid as the same had been executed in fraud of the creditors. The appellants were no parties to those proceedings. They subsequently instituted a suit on foot of their mortgage in December 1958, impleading the original mortgagor and possibly others, but not Gobardhan who is said to have been then an attaching creditor. A preliminary decree was passed on 14 August 1929 which was made final on 4 November 1929. Before the property could be sold in execution of the mortgage decree Gobardhan executed bin wimple money decree, had the property sold and purchased it himself. Subsequently, the appellants applied for execution of their mortgage decree and impleaded Gobardhan in the array of judgment-debtors in their application for execution. Gobardhan protested against being impleaded at that stage. He also impugned the mortgage in favour of the appellants as fictitious and fraudulent.

(2.) It is unnecessary for us to mention in detail all the other objections which he took to the validity of the mortgage. The Court of first instance dismissed the objection of Gobardhan and directed the execution to proceed. Gobardhan appealed to the lower appellate Court which remanded the case with the direction that an opportunity should be given to Gobardhan to substantiate his objections to the validity of the mortgage. The present appeal has been filed by the decree- holders mortgagees who contend that an inquiry into the validity of the mortgage in execution proceedings is not permissible. They also attack the title of Gobardhan on the ground that he is a purchaser pen-dente lite, and as such he acquired no right to the property purchased by him as against the mortgagee decree-holders. In the view of the case we are inclined to take, it is not necessary to express any opinion on this latter question. We are clearly of opinion that the mortgagee decree-holders should not have impleaded Gobardhan as one of the judgment, debtors. Gobardhan was no party to the decree sought to be executed. He should not have been dragged into the execution proceedings. Having been so dragged, the only objection which Gobardhan should have raised was that he was improperly impleaded. He went further and challenged the validity of the mortgage and the decree passed thereon. If this objection were to be inquired into and allowed, the result would be that the Court executing the decree would annul the decree and the mortgage on the basis of which the decree was passed. Such a course will obviously be illegal. It is open to Gobardhan to seek his remedy by a separate suit. He cannot be allowed to intervene before the Court executing the mortgage decree, nor can the court executing the decree question the validity of the decree which it is called upon to execute.

(3.) In these circumstances, we think that the order of remand passed by the lower appellate Court was incorrect. The proper order, in our opinion, is to discharge Gobardhan from the array of the judgment-debtors and to direct the Court of first instance to proceed with the execution of the mortgage decree. Gobardhan should seek such remedy as he may be advised to obtain by instituting a regular suit. Subject to these remarks, this appeal is allowed. The order of the lower appellate Court is set aside and that of the Court of first instance is restored. In the circumstances of the case we allow half costs to the appellant in this Court and the lower appellate Court.