MATIUR RAHMAN KHAN Vs. SONU LAL

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Gaya in a proceeding under Order 21, Rule 90, Civil P.C. by which be has declined to set aside a sale held in execution of a mortgage decree obtained by the respondents against the appellant. The property which was the subject of the mortgage was described in the mortgage bond as well as in the decree as a five annas mukarrari share bearing touzi No. 4548 and separate account No. 60. The decree-holder discovered, when the decree was under execution, that there was a misdescription of the property both in the decree and in the mortgage bond and drew the attention of the executing Court to this misdescription.

(2.) On 31 July 1935, the executing Court held after considering the evidence produced before it, that there was in fact such a misdescription. Against this order, the appellant judgment-debtor did not prefer any appeal and accordingly the executing Court proceeded to sell the property as described in the execution petition of the decree-holder. The sale is now assailed on two main grounds, namely (1) that the executing Court could not go behind the decree and could not therefore sell the property as described in the petition for execution which according to the appellant is different from the mortgaged property in respect of which the decree was passed and (2) that the property sold has not been valued at all under Order 21, Rule 66.

(3.) The main controversy between the parties centres round the question as to whether the mortgaged property appertained to separate account No. 60 or separate account No. 88. This question was raised before the executing Court before the sale and after giving elaborate reasons in support of its view, the Court held on 31 July 1935, that it appertained to separate account No. 88. Now it is well settled that an executing Court has no, right to go behind the decree or in any way to add to or amend the terms thereof. It has to execute the decree as it stands and any amendment thereof can be made only by the Court which passed the decree. It is however the duty of the executing Court to ascertain the property which is the subject of the decree and for this purpose it is entitled to look at the paramount description of the property.