CHEDI LAL Vs. SAADAT-UN-NISSA BIBI

JUDGEMENT

(1.) This appeal arises under the following circumstances. On the 18th of January, 1901, one Zahur Ahmad mortgaged for the sum of Rs. 500 and interest thereon to Inayat Ahmad a 2 anna 8 pie share in Bahmanpur and an 8 anna share in Khasmau. Mauza Bahmanpur appears to have been previously mortgaged to another person on the 12th of August, 1900, and the mortgagor, on the 21st of September, 1901, sold the said village to satisfy the said prior mortgage. After the said sale, on the 5th of October, 1912, Inayat Ahmad the mortgagee sold his interest in the mortgage in suit to Chedi Lal. On the 9th of August, 1913, Chedi Lal sued the heira of Zahur Ahmad, who had died in the meanwhile, for the recovery of a sum of Rs. 2,100 on. the allegation that by reason of the sale of Bahmanpur on the 21st of September, 1907, to satisfy the previous mortgage of the 12th of August, 1900, the plaintiff had lost a part of the property mortgaged. He alleged that, when Zahur Ahmad had made the mortgage, he had represented that the property was free of all mortgages, etc. (and so it is stated in the deed of mortgage). It had since transpired that there was a previous mortgage on one of the properties to satisfy which the said property had been sold. He therefore sued for the recovery of Rs. 2,100 from the estate of Zahur Ahmad, dating his cause of action as accruing in September, 1907, when Bahmanpur passed away from the mortgagor. He also prayed for an alternative relief to the effect that if the first prayer could not be granted for any reason, the plaintiff might be given a decree for sale of the 8 anna share in mauza Khasmau mortgaged under the deed of mortgage.

(2.) The defendant did not enter appearance, and on the 6th of January, 1914, the court was pleased to grant a decree ex parte in the terms of the first prayer. It granted a decree for the recovery of the sum of Rs. 2,100, from the estate of Zahur Ahmad. In execution of the said decree the. decree-holder seeks to attach and bring to sale the interest of Zahur Ahmad in mauza Khasmau aforesaid. The judgement-debtors, inter alia, contend that under Rule 14 of Order XXXIV of the Code of Civil Procedure the said village is not saleable in execution of this decree. This objection has been allowed by both the courts below, and the decree-holder has preferred this appeal against the order. Mr. Kailas Nath Katju on behalf of the appellant has urged three points for the consideration of this Court, viz. 1stly-That the decree under execution being a decree against the estate of Zahur Ahmad, the decree-holder was entitled to realize it by the sale of any property which forms part of his estate. 2ndly-That the decree under execution is not "a decree for payment of money in satisfaction of a claim arising under the mortgage" under Rule 14 of Order XXXIV of the Code, and 3rdly-That in any case the rule is applicable only to the case of a subsisting mortgage. In this case the mortgage has now ceased to be enforceable at law, by reason of the bar of limitation as also by reason of the alternative prayer on the basis of the mortgage not having been granted by the court which passed the decree under execution.

(3.) To deal with the first point raised in the argument. The decree in question is one of the nature referred to in Section 52 of the Code. Zahur Ahmad had died. His heirs were impleaded in the suit as his legal representatives and, as is usual in such cases, the decree was passed against them in their representative capacity realizable out of the assets of the deceased in their possession. There was no Order In the decree creating a charge upon any specific property. It merely pointed out that there was no personal decree against the heirs, but against the estate represented by them. Any item of the assets of the deceased debtor in their hands could be attached in execution, provided that attachment was not forbidden by any rule of law. Thus if the item of assets sought to be attached was, say, the house of an agriculturist or a pension or other property the attachment of which is forbidden by Section 60 of the Code of Civil Procedure, such item of property would not be liable to attachment and sale in execution of this decree. Similarly, if it was an occupancy tenancy, the sale of which was prohibited by the Agra Tenancy Act, it would not be liable to attachment under this decree. So also if its sale is prohibited by Rule 14 of Order XXXIV of the Code, the property could not be sold in execution. The decree is not like a decree for sale in which under the orders embodied in the decree specific property is ordered to be sold. It is a decree in which the attachment or sale can take place only by virtue of orders made for attachment and sale in execution. Whether in respect of a particular property an order for attachment and sale should or should not be made, must depend upon the rules of law relating to execution contained in the Code, or in any other legislative enactment for the time being in force. Rule 14 of Order XXXIV is one such enactment, if on a true interpretation of that rule the attachment and sale is prohibited by it. There is therefore no force in this contention.