RAMDEO RAM Vs. FRANK COMBS

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant for a declaration that he is the owner of certain property, or in the alternative for possession of property. The plaintiff's case was as follows: One Zalim Singh took a first mortgage on the property. The property was again mortgaged by the mortgagor to Mr. Frank Combs, defendant-respondent. Zalim Singh sued on his mortgage, making Mr. Combs a party and got a decree for whole of the property. It appears that decree was not framed in the proper form. The proper form is given as No. 7 of Appendix D of the schedule to the Civil Procedure Code and provides for the proceeds of the sale of the property being paid first to the first mortgagee and any balance to the second mortgagee. The decree as framed used the words of Order 34, Rule 4, directing the proceeds to be applied in payment of what was due to the first mortgagee and the balance to be paid to the defendant or other persons entitled to receive the same. I am of the opinion however, that the decree may be interpreted in the same way as it would have been if it had been in form 7.

(2.) It is not clear from the record whether Zalim Singh applied for execution. All that is certain is that the plaintiff-appellant made an application either to be substituted in pending execution proceedings taken out already by Zalim Singh (this is stated in the plaint) or himself, after transfer of the decree to him by Zalim Singh, moved the Court for execution. It does not appear to me to make any material difference which was the case, and for the purpose of this judgment I will assume that the latter was the case. When the plaintiff applied for execution he ought under Order 21, Rule 16, to have had notice of his application served on the judgment-debtors. He had it served on the mortgagor but did not have it served on the respondent, second mortgagee. The property was sold and purchased by the plaintiff first mortgagee. It does not appear whether there was any balance to pay to the second mortgagee after the first mortgagee was paid: possibly not. The plaintiff has met with opposition from the respondent in getting his name substituted in the village papers. The revenue officer directed that the plaintiff having sold up the interest of the mortgagor and having purchased that interest should be entered as mortgagor and the respondent as second mortgagee should be entered as mortgagee. Hence this suit.

(3.) The trial Court found as a matter of fact that the plaintiff had not given notice to the respondent when applying for execution or when applying, for his name to be entered in a pending execution file in the place of the decree-holder (whichever was the fact). It went on, however, to say that failure to give notice by the plaintiff could not possibly prejudice the respondent except so far as it might prevent the respondent from obtaining any balance of sale proceeds available for him as second mortgagee after the sum due on the plaintiff's first mortgage was paid. Accordingly it accepted an offer of counsel for the plaintiff of the full sum due under the second mortgage and decreed possession to the plaintiff on condition that this sum was paid to the respondent. In first appeal the Subordinate Judge has held that under Order 21, Rule 16, the sale of the property was ineffectual for want of notice to the respondent. He has also held that the Munsif could not allow the plaintiff to get possession by redemption of the respondent. The plaintiff appeals. In this Court his counsel's argument is that the respondent, even if he had got notice, could not possibly have resisted the application for sale of the property, and that the only possible way in which he can have been prejudiced by want of that notice was by losing an opportunity possibly to lay claim to any balance payable to him as second mortgagee. Order 21, Rule 16, however, does not appear capable of being construed, in my opinion, otherwise than as absolutely requiring that any judgment-debtor must have notice and has enacted that the execution proceedings subsequently taken in the absence of such notice are absolutely void. This was held in Kassum Goolam Hussein V/s. Dayabhai Amarsi [1912] 36 Bom. 58. That decision has been followed in Notam Dass V/s. Lachhman Singh A.I.R. 1921 Lah. 143, where other decisions on the same lines have been quoted. Whatever injustice the mandatory nature of Order 21, Rule 16, may work, it does not appear to me to be possible to evade its clear provisions.