RAM NIWAS Vs. RAM DAYAL

JUDGEMENT

(1.) This appeal is directed against the order passed by the Court below rejecting an application filed by Ram Niwas appellant, which application purported to be an application under Order 21, Rule 2, Civil P.C. The facts that led to the application just mentioned are as follows : A suit for sale on a mortgage was filed by one Bindeshwari Prasad against three persons named Ram Niwas (who is the appellant before us), Ramsarup and Ram Prakash. One Ram Dayal was also impleaded as a pro forma defendant in the suit. The suit was registered as Suit No. 4 of 1931. The prayer contained in the plaint was that a decree for a sale with respect to the mortgaged property be passed jointly in favour of Bindeshwari Prasad and Ram Dayal. The amount claimed in the suit was a sum of Rs. 8250. On 20 August 1931 a preliminary decree for sale with respect to a sum of Rs. 5188 was passed by the Court in favour of Bindeshwari Prasad and Ram Dayal. Two of the defendants to the suit, viz. Ram Sarup and Ram Prakash, filed a first appeal in this Court against the preliminary decree passed by the trial Court. This Court on 8th September 1936 modified the preliminary decree by ordering that certain properties ordered to be sold by that decree be exempted from the liability to sale. On 7 December 1936 Ram Dayal filed an application in the Court below stating that an adjustment had been arrived at between him and Ram Niwas, appellant, with respect to his half share in the decretal amount. It was stated in the application that in lieu of the sum of Rs. 3500 that was due to him on account of his share in the decree he had agreed to accept in complete satisfaction of his share in the decretal amount a sum of Rs. 2100 and that a sum of about Rs. 1800 out of the sum of Rs. 2100 had been paid to him. The prayer contained in the application was that the adjustment just mentioned be certified by the Court in accordance with the provisions of Order 21, Rule 2, Civil P.C. On the date on which the application was filed the Presiding Judge of the Court was on leave, with the result that the application was not put before him for disposal till 12 December 1936.

(2.) In the meantime one Mt. Sahodra who held a usufructuary mortgage against Ram Dayal filed a suit in the Court of the Munsif of Kasganj for the recovery of a certain amount of money. This suit was also filed on 7 December 1936. It is stated that Mt. Sahodra gave up her security under the mortgage and prayed for a simple money decree against Ram Dayal. On 8 December 1936 Mt. Sahodra applied for attachment of the preliminary decree passed in favour of Bindeshwari Prasad and Ram Dayal so far as the interests of Ram Dayal in the docree were concerned, and on the same dato the learned Munsif passed an ex parte order directing the attachment of the decree. On 10 December 1936 Ram Niwas, appellant, also applied in the Court below for adjustment referred to above to be certified by the Court in accordance with the provisions of Order 21, Rule 2, Civil P.C. On 12 December 1936 the learned Judge rejected the application of Ram Dayal with the remark that as half of the decretal amount had been attached under the orders of the Munsif of Kasganj the application of Ram Dayal could not be granted. Having passed this order the learned Judge, on 17 December, rejected the application of Ram Niwas on the ground that as the decree-holder's application had already been disallowed on 12 December, Ram Niwas application, also could not be entertained. Ram Niwas by the present appeal assails the order just mentioned.

(3.) This appeal came up for hearing before a Bench of this Court on 22nd September 1938, and Mr. Baleshwari Prasad on that date brought it to the notice of the Bench that Mt. Sahodra, his client, was vitally interested in the result of this appeal and accordingly he prayed that the appeal should not be disposed of without impleading Mt. Sahodra as a party to the appeal. The Bench then ordered Mr. Baleshwari Prasad to make enquiries and then make a statement on the question whether or not Mt. Sahodra's suit had been decreed. Mr. Baleshwari Prasad has to-day stated before us that a decree for a sum in excess of Rs. 1000 has been passed by the Munsif of Kasganj in favour of Mt. Sahodra. It would appear from the facts stated above that Mt. Sahodra claims to be an attaching creditor of the decree in question. It cannot therefore be disputed that she is vitally interested in the result of this appeal, but in the view that we have taken we consider it unnecessary to implead Mt. Sahodra as a party to the present appeal. It is clear that Order 21, Rule 2, Civil P.C. is confined in its operation to decrees that are capable of execution. That this is so is manifest from the provision contained in the rule as to the recording of the adjustment or payment by the Court "whose duty it is to execute the decree." In the case before us no final decree for sale has yet been passed and the alleged adjustment was with respect to a preliminary decree for sale. A preliminary decree is not a decree capable of execution. It therefore follows that the alleged adjustment could not be recorded by the Court in accordance with the provisions of Order 21, Rule 2, Civil P.C.