SHYAMSUNDER KUER Vs. MATHURA PRASAD SEN

JUDGEMENT

(1.) This is a decree-holder's appeal from the decision of the learned Subordinate Judge of Gaya, upholding the judgment-debtor's objection to the execution of the decree.

(2.) The facts leading up to this appeal may shortly be stated as follows: The respondent executed a usufructuary mortgage bend on 26 Bawan 1330 Fasli, corresponding to 22 August, 1923, securing repayment of Rs. 95,000 in favour of the appellant. The mortgagor purported to deliver possession of two villages named Kuhila, including Karman Biggha, and Bhawanpur, including Alagdiha, comprised in Tauzi No. 4233 in mahal Kuhila as also certain Ichudkasht and hahasht lands contained in the schedule to the deed of mortgage. The usufruct of the mortgaged properties was fixed at Rs. 8000, out of which the mortgagee in possession was to appropriate the sum of Rs. 7125 as interest on Rs. 95,000, the principal sum secured, at the rate of 7% per cent. Per annum. The remaining sum of Rs. 875 was stipulated to be paid back to the mortgagor every year in two instalments. Two days later, two other documents were executed between the parties, namely (1) a deed of lease (called patta katkena), whereby the mortgagee in possession leased back to the mortgagor the mortgaged properties aforesaid on a fixed annual rent of Rs. 8000, and (2) a "mortgage security bend," mortgaging mauza Bhawanpur, out of the mortgaged properties, as also mauza Bunderkol as a security for the regular payment of the rent of the leasehold properties, and agreeing to pay interest on unpaid instalments of arrears of rent at the rate of Re. 1-9-0 per cent. Per month. As usual, the mortgagor failed to pay the stipulated amount of rent to the mortgagee, with the result that a final mortgage decree was obtained on 11 January 1930, for the sum of about thirty thousand rupees in mortgage Suit No. 34 of 1927. The decree was put into execution in Execution Case No. 14 of 1930. In that execution case, the decree-holder prayed for the sale of mauza Bunderkol as also of mauza Bhawanpur. The mortgagor objected to the sale of mauza Bhawanpur under Section 47 read with Order 34, Rule 14, Civil P.C., and contended that village Bhawanpur could not be sold. The executing Court held that the provisions of Order 34, Rule 14 were a bar to the execution of the decree by sale of village Bhawanpur. It accordingly directed that mauza Bhawanpur should not be Hold in execution of the decree. Ultimately, the other village, Bunderkol, was sold. The mortgagee obtained another, decree on the mortgage security bend, which was made final on 23-11-1940, for the sum of Rs. 59,716 odd, principal with interest up to the date of execution, that is to say, about the end of 1943. In the execution petition, the decree-holder prayed for the sale of mauza Bhawanpur, the remaining property comprised in the mortgage security bend. In this execution case, the judgment-debtor took the same objection to the sale of mauza Bhawanpur as he had taken successfully in the previous execution case. The executing Court has again upheld the judgment-debtor's contention, and held that mauza Bhawanpur cannot be sold unless the provisions of Rule 14 of Order 34 of the Code have been complied with. His reasons for such a decision are two-fold, firstly, that the usufructuary mortgage bend, the deed of lease and the mortgage security bend being all parts of the same transaction, the provision of Rule 14 of Order 34 are a bar to the sale, and, secondly, that the previous decision in the execution case of 1930 was res judicata between the parties. Hence, this appeal by the decree-holder.

(3.) Before dealing with the merits of the appeal, I may mention the fact that the paper-beok as prepared originally did not contain all the relevant documents on which the decision of the appeal depended. The learned advocate for the respondent made an application under Rule 27 of Order 41 of the Code for reception of additional evidence. The application sets out the documents which the respondent prayed to be admitted as additional evidence. The learned advocate for the appellant did not object to this course. As a matter of fact, be welcomed the proposal. The learned advocate for the respondents has supplied the Court with copies of these documents, which are mostly public documents, with translations where necessary. We have looked into these documents on the assumption that they are part of the records of this case.