ILIM MOLLA Vs. MANINDRA MOHAN PODDAR

JUDGEMENT

(1.) THIS is an appeal against an order of the District Judge of Dacca made in affirmance of an order of the Court of first instance to the effect that the appellants are liable to satisfy a decree for costs made in favour of the respondent in a suit to enforce a mortgage security. The respondent joined the appellants as defendants in the mortgage suit on the allegation that they were transferees of the equity of redemption. He obtained the usual mortgage decree specifying the amount due on the mortgage and the costs of the suit. The decree directed that if this sum was not paid within the period of grace by the defendants to the plaintiff, the mortgaged property or a sufficient part thereof would be sold and the sale proceeds applied in satisfaction of the decree. Execution was taken out in due course and the decree was satisfied in part. But although the mortgaged properties had been exhausted, a considerable sum still remained due to the decree holder. The decree holder thereupon applied for execution. The office raised a question as to whether execution could be had before the decree-holder had obtained a supplemental decree in accordance with Order XXXLV, rule 5, of the Code of Civil Procedure. The Court thereupon directed that the record should be sent for and that the matter should be put up for consideration in the presence of the decree-holder, No notice of the application was served upon the present appellants or upon any of the other judgment debtors. The Court subsequently came to the conclusion (and this was an ex parte decision) that a supplemental decree was not necessary and that execution could issue on account of costs as against the present appellants. Execution was issued with the result that the present appellants forthwith appeared before the Court and objected that they were not liable under the decree. The Court held that the matter had been previously decided and that they were bound by that order. They appealed, but to no purpose and the order of the first Court was confirmed. THIS view cannot be supported. As explained by Mr. Justice West in Sheik Budan v. Ramchandra 11 B. 537 : 6 Ind. Dec. (N.S.) 354, there is no room in such circumstances for the application of the principle laid down by the Judicial Committee in the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 8 I.A. 123 : 11 C.L.R. 113 : 4 Sar. P.C.J. 249 : 4 Ind. Dec. (N.S.) 32. That decision is based on the ground that if a party to an execution proceeding who had an opportunity to take exception to a proposed order of the Court has omitted to object, he is bound in the same way as if an adverse order had been made in his presence. In the case before us, the appellants had no notice of the application by the decree- holder. Indeed, the only matter for consideration before the Court at that stage was whether execution could proofed without a supplemental decree under Order XXXIV, rule 6. The Court could not have intended to decide, in the absence of the judgment-debtors, and without notice to them, the question of their liability under the decree. We must consequently hold that the order of the Courts below cannot be supported. The question now arises whether the matter should be remitted to the Court of first instance for consideration. Fortunately it is not necessary to do so. The decree has been produced before us and shows, on the face of it, that the defendants are not personally liable for the costs.

(2.) THE result is that this appeal is allowed, the order of the Court below set aside and the application dismissed with costs, both in this Court and in the Court below. We assess the hearing-fee in this Court at one gold mohur.