ABDUL AZIZ Vs. SHAH ABDUL RAHIM

JUDGEMENT

(1.) This is an appeal by a judgment-debtor and it arises out of the following facts: One Abdul Rahim executed a simple mortgage in favour of the Kayashta Trading and Banking Corporation for Rs. 600 which was payable in two years. The property hypothecated consisted of three houses and the rate of interest agreed upon was one rupee per cent per mensem at six-monthly rests. The mortgagee assigned the mortgage to one Shamsuddin on 19 March 1915. Abdul Rahim sold one of the mortgaged houses to Abdul Aziz, the appellant, on 14 June 1918. for a sum of Rs. 1,100 out of which Rs. 601 were left with the vendee for payment of the mortgage-debt in part. This payment was not made. Shamsuddin having died, his heirs, namely, Mt. Shahidan Bibi and others brought a suit on the mortgage dated 13 April 1912, against Abdul Rahim, Abdul Aziz and others. A preliminary decree was passed on 13 July 1926. The final decree followed on 14 January 1927. The decree-holder applied to the Munsif of Gorakhpur for the execution of the decree and Abdul Aziz applied that the house purchased by him on 14 June 1918 be sold last in execution of the final decree. On 15 July 1927 the Munsif acceded to this prayer and passed an order to that effect behind the back of Abdul Rahim. Shortly after the making of the said order, Abdul Rahim appeared in Court and presented an application protesting against the orders of the learned Munsif directing that the house property purchased by Abdul Aziz be sold last. On 27th August 1927, the Munsif reviewed the order dated 15 July 1927 and directed that the said order could be availed of by Abdul Aziz on this condition that he paid a sum of Rs. 601 to the decree-holder in satisfaction of the mortgage together with interest on the said amount at one rupee per cent per mensem compoundable every six months from 14 June 1918, the date of his purchase right up to the date of his payment.

(2.) Aggrieved by the aforesaid order, Abdul Aziz lodged an appeal in the Court of the learned District Judge which was heard by the Second Additional Subordinate Judge of Gorakhpur. A preliminary objection was raised by the respondent as regards the competency of the appeal, The learned Judge accepted the preliminary objection and dismissed the appeal upon the ground that no appeal lay to him. The ratio of the decision was that the order dated 27 August 1927, was passed in the course of an execution proceeding in which Abdul Rahim and Abdul Aziz, the rival judgment-debtors were ranged on opposite sides and there was no question between the parties to the suit in which the decree was made within the meaning of Section 47, Civil P.C. Abdul Aziz appeals to this Court and urges that the matter between the parties was one under Section 47, Civil P.C. and that an appeal lay to the lower appellate Court.

(3.) Section 47, Civil P.C. provides: All questions arising between the parties to the suit, in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.