RUKHADU PARBATSINGH Vs. KRISHNARAO KALURAM

JUDGEMENT

(1.) 1. The defendants-appellants are the mortgagors. They borrowed a debt from the plaintiff and executed a mortgage deed dated 24-1-1930 in his favour. The cause of action of this mortgage accrued on 24-1-1930. On 591936, the mortgagors applied to the Debt Conciliation Board for conciliation of their debt. The Board passed an order dated 8-9-1938 conciliating the debt and an agreement was accordingly executed and registered on 8-9-1938 (Ex. 1. Their D-2). This agreement provided that the debt due on the mortgage was to be satisfied by transfer of some immovable property by the mortgagors in favour of the mortgagee. The mortgagors did not carry out this agreement and no deed of conveyance was, as required by the agreement, executed.

(2.) THEREUPON the mortgagee filed a suit against the mortgagors on 25-1-1943 for recovery of the mortgage debt on the strength of the mortgage dated 24-1-1930. He ignored completely the agreement before the Board Ex. 1-D-2 and fell back on the original cause of action. This suit was originally filed in the Court of First Sub-Judge but it was subsequently transferred by the District Judge to the Court of Second Sub-Judge on 28-9-1944. One of the issues, that is issue No. 4(a) in the suit, was whether the suit on the original cause of action, ignoring the agreement before the Debt Conciliation Board, was maintainable. The trial Court held that it was not maintainable and that the remedy of the mortgagee was on the execution side for specific performance of the agreement reached and recorded before the Debt Conciliation Board. The trial Court, however, considered that it was a fit case in which under Section 47(2)., Civil P.C., the suit can be treated as a proceeding in execution Hinder Section 47 and it ordered accordingly. By the latter part of the order, namely by treating the suit as a proceeding under Section 47 of the Code, the defendants felt aggrieved. They, therefore filed an appellate the lower appellate Court dismissed their appeal and they have filed this miscellaneous second appeal.

(3.) THE suit filed by the mortgagee was not for specific performance of the agreement. If it was so, then obviously it would involve questions relating to the execution, discharge or satisfaction of the decree, and at least to that extent there was no objection in converting that suit into a proceeding under Section 47, Civil P.C. The suit filed by the plaintiff was, however, not, to enforce agreement before the Debt Conciliation Board which on registration had the force of a decree.