HARENDRA LAL SANYAL; UMENDRA NATH SANYAL Vs. PABNA MODEL COMPANY LIMITED; PABNA MODEL COMPANY LIMITED AND HARENDRA NATH SANYAL

JUDGEMENT

(1.) In this case it appears that four brothers of the name of Sanyals and two ladies, being the wives of two of the brothers, executed a mortgage-bond in favour of the decree-holder who is the respondent before us. In this mortgage-bond five properties were mortgaged and of these three were described as the property of one of the two ladies, namely, a lady of the name of Nil Nalini Debi, the other two being the property of one or more of the other five mortgagors. The respondent before us brought a suit on his mortgage and obtained a decree for the sale of the mortgaged properties sometime in December 1916. Thereafter in March 1917 the sons of Nil Nalini brought a suit to have it declared that the decree was not binding upon them or as against the properties of Nil Nalini, on the ground that Nil Nalini had died before the mortgage suit was instituted. This suit was decreed on the 21st February 1918. On the 10th of April 1918 the decree-holder made an application for the revival of the mortgage suit and for an amendment of the plaint making the sons of Nil Nalini parties to the same. This application was opposed by at least one of the brothers and was finally rejected. Thereafter the decree- holder made his application for the sale in execution of the remaining two properties. It is objected by one of the judgment-debtors that the execution, if it can proceed at all, can proceed only for such sum as might be found to be justly due on the two properties not excluded from the decree, and in support of this contention before us two cases, Hari Kissen Bhagat v. Veliat Hossein (sic) 755 : 7 C.W.N. 80 and Mahomed Siddik v. Ram. Lal Mandar (Saudagar Mian Lahiri) (sic) Cas. 4 : 15 C.W.N. 80 are cited. It does not appear to us that in these cases the facts are the same as in the present case. Moreover, the objections taken in these cases were taken in the course of the, original suit, while here we have the objection taken to the execution of the decree as it now subsists. Obviously this is not a question into which the execution Court can enter, and the decree as it now subsists must be executed by the execution Court now subsists must be executed by the execution Court.

(2.) In the result this appeal is dismissed with costs. We assess the hearing fee at five gold mohurs

(3.) The analogous Miscellaneous Appeal No. 66 of 1919 is not pressed and is also dismissed. We make no order as to costs in this appeal.