MUHAMMAD ZAKARIA Vs. KISHUN NARAIN

JUDGEMENT

(1.) This purports to be an execution first appeal from an order dated the 6 July 1925 passed by the execution Court. It appears that a mortgage-decree for sale was in execution and a proclamation of sale was prepared and issued in the first instance under Order 21, Rule 66. The date for the sale was fixed as the 9 of July 1925. Three days before this date the respondent Muhammad Hafiz who was till then no party to the execution proceedings tiled an application in the execution Court praying that a certain mortgage-deed dated the 14 of September 1910 in his favour be notified. In his application he set forth the fact that on a previous occasion he had instituted a suit for the recovery of the principle amount due on his deed but that suit was ultimately dismissed. He then recited a passage from the judgment of Mr. Justice Walsh who was one of the learned Judges who disposed of the appeal in the High Court, to the effect that "it by no means follows from the decision (dismissing the suit) that there is no subsidiary liability from the defendant to the plaintiff to pay interest so long as the principle is outstanding, and then after referring to the judgment passed by their Lordships of the Privy Council referred to the covenant in the mortgage-deed under which there was a liability on the mortgagor to pay interest. He then prayed as ordered by the Hon ble High Court the condition mentioned above may be notified at the time of the sale. An objection was raised on behalf of the judgment-debtor but the learned Subordinate Judge without deciding as to whether there was or was not any existing liability ordered that the notification asked for be allowed subject to the amendment that the claim for principal under the bond of the 14 of September 1910 is no longer recoverable by suit.

(2.) The report of the Amin does not expressly mention in what language he made the notification, but it may be assumed for the purpose of this revision that the notice was given as ordered by the learned Subordinate Judge.

(3.) The judgment-debtor has appealed from this order.