SHEO NARAIN SAH Vs. MTDEOLOCHAN KUER

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of the First Courts, Chapra, refusing to allow execution to proceed upon an execution petition filed by the appellant.

(2.) On 12 September 1925, one Tinkauri Singh mortgaged certain properties to the appellant to secure the repayment of a sum of Rs. 44,000 On 10 July 1987, the appellant instituted a suit against. Tinkauri Singh's widow and certain other defendants sued against as transferees of the right of redemption in the mortgaged properties, for the recovery of the mortgage monies plus interest to date and for an order foe the sale of the mortgaged properties. On 22nd September 1988, a preliminary decree for sale in the mortgage suit was passed ordering the defendants to pay the sum of Rs. 101,896-14-0 with future interest at 6 per cent, per annum into Court on or before. 3l March, 1989. In January 1989, some fifteen village comprised in the mortgaged properties were sold to the appellant, who had obtained leave to bid, in execution of a money decree obtained by the appellant against the owners of some of the mortgaged properties; and on 17 January 1939, the sale to the appellant was confirmed. The owners of the properties in question had been dismissed from the mortgage suit on the ground that they claimed a paramount title thereto into which claim the Court: did not consider it necessary to inquire In the proclamation for sale of the said villages the appellant had notified that they were sold subject to the encumbrance of the said mortgage to himself. On 8 July 1939, a final decree in the mortgage suit was passed under which the mortgaged properties, including these purchased by the appellant in the execution of the abeve-mentioned money decree, were ordered to be sold and the proceeds were ordered to be applied in payment of the monies decreed in the preliminary decree. Oil 1 July 1942, the appellant applied for execution of the said final decree and on n July, 1944, the order now under appeal was passed refusing to allow execution to proceed upon the ground that the appellant was bound first to ascertain the quota of the contribution which he was liable to make by reason of his above-mentioned purchase of borne of the mortgaged properties under the provisions of Secs.60 and 82, T.P. Act, 1882, and to give a set off of that amount against the decretal debt in respect of which he was seeking execution.

(3.) Mr. S.N. Datta who argued the case for the appellants contended, firstly, that the respondents right of contribution was a matter that might and ought to have been made a ground of defence in the suit for sale and was, therefore, res judicata, and secondly, that in any event the respondents right of contribution was not per se a matter relating to the execution, discharge and satisfaction of the decree for sale within the moaning of Section 47, Criminal P.C., and could not, therefore, be raised in execution proceedings.