NAROTTAN DAS Vs. KRISHNA PRASAD

JUDGEMENT

(1.) This appeal is from the order of the Subordinate Judge of Bhagalpur directing the names of the appellants to be added as judgment-debtors in an execution proceeding. The facts are these: The respondent Kishun Pershad obtained a decree against Partap Narayan Chaudhury and another for a sum of Rs. 9,562.14- 0. The decree directed that the decretal amount was to be paid in annual instalments provided that the judgment-debtors filed in Court within one month a registered security bond hypothecating certain property as security for the realization of the decretal debt. This order was obviously passed under Order 20, Rule 11, Civil P.C. The defendants complied with the conditions and filed the security bond hypothecating their property for the satisfaction of the decree. There was some question raised between the decree-holder and the judgment-debtors whether the terms of the decree were complied with and the bond was filed in time. I need not enter into it, as it has been held in an earlier proceeding that it was done.

(2.) The judgment-debtors made a default in the payment of the instalments and the decree-holder who is the principal respondent before us, put the decree in execution and proceeded to sell the hypothecated property without first getting it attached. An objection was raised on behalf of the judgment-debtors that the property could not be sold without an attachment. This was upheld by the executing Court on 2 November, 1932, but the order was reversed on appeal by this Court on 16 March, 1934. The judgment is reported in Krishna Prasad v. Pratap Narayan 1934 Pat 608. In the meantime the execution case was dismissed on 20 March 1933 for default of the decree-holder. When this Court decided that an attachment was not necessary, the execution case was restored on 10 July 1934. In the meantime the appellants purchased the hypothecated property in execution of their own simple money decree. When the execution case was restored, the decree-holder applied that as the appellants had purchased the hypothecated property of the judgment-debtors they should be deemed to be their representatives and should be added as such in the execution proceeding. To this the appellants raised various objections, but we are concerned only with one of them namely that they should not be added as judgment-debtors in the execution proceeding. The objections were disallowed and the appellants were added as judgment-debtors as representatives of the original judgment-debtors. They have appealed against the order.

(3.) During the course of the execution in which the appellants purchased the property the decree-holder of this case applied that his charge upon the property in question should be notified. This was ordered to be done, but somehow or other it was not notified. The appellants however knew of it. No question has therefore been raised before us that the appellants had no notice of the charge of the decree-holder on the property which they had purchased. The only question involved in this appeal is whether the decree-holder respondent is entitled to proceed with his execution against the hypothecated property in the presence of the appellants. The decision of the issue depends upon the determination of the nature of execution of a simple money decree for the satisfaction of which security has been given under the provision of the Civil P. C.. Mr. Mullick appearing on behalf of the appellants has contended that if the hypothecated property can at all be sold in execution of the decree, that property cannot be treated as if it is a mortgaged property. As such it cannot be sold without institution of a fresh suit as provided in Order 34, Rule 14. But if the decree be executed as a simple money decree without any reference to the fact that the property sought to be sold is hypothecated to the decree-holder, the appellants cannot be treated as representatives of the judgment-debtors and cannot legally be brought on the record. The learned advocate for the respondents has, however, contended that the principle of Order 22, Rule 10, applies in this case and the suit must be treated as pending till the decree is satisfied. He contends that when a property is given in security for the satisfaction of a simple money decree the decretal debt thereby becomes a charge upon the property and the charge can be enforced in execution of the decree itself, and a transferee of the hypothecated property being the representative of the judgment-debtor the decree-holder is entitled to have him added as a party to the execution proceeding in order to give him an opportunity of redemption.