JATRU PAHAN Vs. AMBIKAJIT PRASAD

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order passed by the learned Judicial Commissioner of Ranchi by which he, in appeal, has reversed the decision of the learned Munsif and has held that the opposite party, respondent here, is entitled to take objection to the validity of the decree in the circumstances about to be stated. The decree-holder obtained a mortgage decree against one Bikramajit Prasad. At the time of the execution of that decree Bikramajit Prasad was dead and Ambicajit Prasad and some others were substituted as legal representatives of the deceased judgment-debtor. Ambicajit Prasad took objection under Section 47, Civil P.C., that either the interest of the judgment-debtor had ceased by his death, or that the judgment-debtor had no right whatsoever to execute the mortgage bond on the basis of which the mortgage decree under execution had been passed.

(2.) The learned Munsif had no difficulty in disposing of these objections as being untenable. He pointed out that the objection that the mortgagor had no right to alienate or to mortgage the property should have been raised in the original suit itself and since the decree was final, the executing Court cannot go behind the decree. He then goes on that if there was a stipulation in the partition-deed that Bikramajit Prasad was absolutely restrained from alienating the property, such a condition was void under Section 10, T.P. Act.

(3.) Against this decision there was an appeal which was disposed of by the learned Judicial Commissioner, who, while discussing the matter under point No. 1 whether the application could come under Section 47, Civil P.C., or whether a separate suit should be instituted, observed that he could not understand any point "in the attempt on the part of the decree-holder to put off consideration of the question simply by saying that there should be a fresh suit. The question for decision will be the same, what exactly Bikramajit Prasad could mortgage, and whether the condition was void under Section 10, T.P. Act, and whether after his death the decree has any force against the property." Accordingly, he overruled the decision of the learned Munsif and held that the judgment-debtor had no right whatsoever to transfer the property by way of mortgage and the mortgage decree could not be executed against the objector. Hence, this second appeal to this Court.