GOBARDHAN DAS Vs. ANMOLE SINGH

JUDGEMENT

(1.) THE facts connected with this appeal are extremely complicated but as they are admitted and the only question involved is one of law, they can be stated with little detail. THEre were three mortgages, one of the year 1874, one of the year 1886 and one of the year 1888, THEy were in favour of the same mortgagees (who, as a matter of fact, were the predecessors-in-title of the plaintiffs Nos. 1 and 2). In the year 1903 the father of the respondents purchased an 8-anna share in Mauza Beli, which was part of the property included in all three mortgages. This purchase was by private treaty. A decree was obtained in the year 1895 on foot of the first mortgage, and that decree was made absolute in 1896. Subsequently another decree was obtained on foot of the other two mortgages in 1906 and made absolute in 1907. THE plaintiffs in the present suit purchased at an auction sale, held in execution of this last mentioned decree, certain portion of the mortgaged property. THEir purchase was in 1911. Before that, however, in 1905 the father of the respondents had paid off all that remained due on foot of the decree of 1895 in order to save the property he had purchased in 1903 from being sold. THE plaintiffs, who were decree-holders in the decrees obtained on foot of the mortgages of 1886 and 1888, made the father of the respondents a party to their suit and execution proceedings because he was in possession of portion of the mortgaged property. Before the sale he became interested in the property in another way, namely, because he had paid off all that remained due op foot of the decree of 1895. Whether the father of the respondents could or could not have taken any steps in the execution proceedings, which would have safeguarded him as regards the payment he had made in discharge of the decree of 1895, is not very clear but as a matter of fact nothing was done. THE respondents, however, in 1909 applied to the Court for an order declaring the decree of 1895 to be absolute in their favour. THE object of this application was, of course, to enable, if possible, the respondents to execute the decree of 1895 and so to recover the Rs. 7,000 odd which had been paid to save the 8-annas share in Mauza Beli. THE respondents did not make the plaintiffs party to this application and an order was made by the Court in the terms asked for in the absence of the plaintiffs. Subsequently when the plaintiffs found that the respondents, in pursuance of the order they obtained, were about to put the property up to sale, they instituted the present suit for a declaration that the decree of 1895 could not be executed as against them and that the defendants were not competent to bring the property to sale under that decree. THE Court below has dismissed the plaintiffs suit.

(2.) IN appeal it has been contended that the defendants have no right to bring the property to sale under the decree of 1895, and that if the respondents had any remedy they should have asserted it when they were made parties to the execution proceedings when the plaintiffs were executing the decrees obtained on foot of the mortgages of 1886 and 1888. The case is by no means free from difficulty. There can be no doubt that the father of the respondents paid off a substantial sum which was due on foot of the decree obtained on the earliest mortgage of the three, that is the mortgage of 1874 ; and it would appear that he has (or at least had), some equity, provided he was able to enforce it. All that we have now to decide is whether or not he can enforce it by bringing the property to sale on foot of the decree of 1895 in the events which have happened. A moment s consideration will show that when the father of the respondents paid the sum of Rs. 7,000 odd, the payment had the off act of fully discharging the decree of 189). The decree having been discharged it was insapible of being executed. Mr. Agarwala asked us to hold that in the events which have happened the decree had vested by operation of law IN the father of the respondents within the meaning Order XXI, Rule 16, and that, therefore, they ought to be allowed to execute the decree and that their application to the Court was in effect an application to execute the decree. We cannot hold that the father of the respondents became the transferee of the decree. IN the first place there was no transfer, and in the next place, as already stated, the decree ipso facto came to an end with the payment of the money. The decree was fully satisfied and could not be further executed by the decree-holder or any other person. What the father of the respondents ought to have done if he could) was to have paid the money to the decree-holders and taken a transfer from them instead of paying the money into Court, in which case he would clearly be entitled to execute the decree, it seems to us that the order of the Court making the decree absolute in favour of the father of the respondents was an illegal order IN the first place, the decree had already been made absolve years before IN the next place, it follows from what we have already said that the decree having been discharged, it was no longer capable of being made absolute. Mr. Agarwala next contends very strongly that under Section 47 of the Code of Civil Procedure we should treat the application made for an order absolute, as a suit. This seems open to numerous objections. IN the first Place we have not the application before us at all. We are not dealing with an appeal connected with an application for execution. We are dealing with a suit brought by a party who seeks a declaration that this property cannot be brought to sale This consideration alone disposes of the argument. It is next contended that the Court below in effect treated the application as an application for execution, and the property could be sold in execution of the decree. To a great extent this argument has been already dealt with by what we have said above : but it would appear from the decision of their Lordships of the Privy Council in Gopi Narain Khanna v. Bansidhar 27 A. 325 : 9 C.W.N. 577 : 2 A.L.J. 336 : 2 C.L.J. 173 : 7 Bom. L.R. 427 : 15 M.L.J. 191 : 32 I.A. 123 : 8 Sar. P.C.J. 799 : (P.C.) that the plaintiffs rights, if any, must be asserted by a separate suit. We allow the appeal, set aside the decree of the Court below and grant the plaintiff a decree declaring that the property is not liable to sale under the order absolute obtained by the respondents in respect of the property mentioned in the plaint. The appellants will have their costs in both Courts.