DAMODAR DAS Vs. BINDESHWARI SINGH

JUDGEMENT

(1.) The appellants having obtained final decree for Rs. 36,000 on the foot of a mortgage in 1928 applied for execution of their decree. Thereupon, in 1930, Ramjasi Kuer, one of the mortgagors judgment-debtors, instituted a suit in which she prayed for a declaration that the decree was not binding on the mortgaged property and prayed for stay of the execution proceedings. The proceedings were accordingly stayed until October 1931 when Ramjasi Kuer's suit was dismissed. Thereupon the execution proceedings revived and eventually the properties were brought to sale. In 1933 however the High Court, on appeal from an order under Order 21, Rule 90, set asides the Sale and directed a fresh sale to be held. Accordingly a fresh sale proclamation was issued. Thereafter the execution proceedings were dismissed. On 19 June 1933, the execution proceedings re- started. The judgment-debtors preferred objections under Section 47, Civil P.C., which were eventually rejected both by the execution Court and by this Court on appeal. 4 June 1934 was fixed for sale. In the meanwhile the decree-holder had applied for the appointment of a receiver on the ground that the judgment-debtors were transferring portions of their property and that the decretal dues were mounting up to such an extent as to render the security in-sufficient for their satisfaction. On 7 June 1934 a receiver was appointed, one of the grounds being that the mortgage security was insufficient for the decretal debt. On the same day the present suit was instituted for a declaration that the plaintiffs were not bound by the mortgage decree. The plaintiffs were two minors who had been represented in the mortgage suit by a guardian-ad-litem and another minor who was not born on the date of the mortgage. The plaintiffs, prayed for stay of sale until the disposal of their suit. On 19 June 1934 the Court passed an order staying the execution sale, on this occasion holding that the value of the security was far in excess of the amount due under the decree. Against that order the defendants have preferred the present appeal.

(2.) The learned Subordinate Judge who passed the order appointing a receiver and also the order appealed from has set out in his judgment the tests which in his opinion are applicable when deciding whether a temporary injunction should be granted to the plaintiffs or not. There can be no doubt that the tests applied by the learned Subordinate Judge, in so far as they go, are perfectly correct; but there are other circumstances which arise in a case like this, when a litigation has been fought out between the parties, and which have not been considered by the Court below. The liability of the mortgagors in respect of the mortgage has been established in a competent Court in the presence of the parties concerned and six years elapsed before the present plaintiffs took any steps to challenge that mortgage. These two important considerations have entirely escaped the notice of the Court below. The learned Advocate for the respondents has contended that the balance of convenience lies in maintaining the status quo rather than in allowing the execution sale to proceed. In my opinion that is not so. When a litigation has resulted in one side succeeding that party is entitled to look to the Court to assist him in reaping the fruits of his victory and the party who has lost is not entitled, as a matter of course, as appears to be the conception of the Courts below, to obtain the assistance of the Court in frustrating the victorious party. In the present instance we can see no reason why the successful mortgagees should not be allowed to execute their decree which was obtained in the presence of the minor plaintiffs who were represented in the mortgage suit by a duly appointed guardian ad-litem. We would accordingly allow the appeal and set aside the order of the Court below staying the sale. The appellants are entitled to their costs. Varma, J.

(3.) I agree.