BHOLA NATH SEN Vs. JOGENDRA MOHAN DAS

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge, Fourth Court of 24-Parganas made on 5 October 1936, whereby in Execution Case No. 76 of 1934, the learned Judge dismissed an objection raised by the judgment-debtor against the execution of the decree. The facts in this case are many and rather involved. In 1903 the judgment-creditors or their predecessors-in-title lent a sum of Rs. 7000 on the security of certain land in Entally, a suburb of Calcutta, and the loan was to bear interest at the rate of 12 per cent. The borrower executed a mortgage on the land and subsequently a further charge with which we are not concerned. In 1914 the lenders sued the borrowers and asked for a decree of sale against the land which they said was mortgaged. The borrowers alleged that they had mortgaged the whole 16 annas share of the property whereas they were only entitled to mortgage a four annas share of it and that the mortgage was invalid. The Subordinate Judge upheld this contention and decided that there was no mortgage of the property concerned. He however made a simple money decree for the principal lent and the interest accrued. The lenders appealed to the High Court which, on 5 June 1917, reversed the decision of the Subordinate Judge directing that an ordinary mortgage decree must be passed with accounts and to use the words of Fletcher J., fixing a date for payment within which if payment is not made the property would be brought to sale by the Court. The case must be remitted to the lower Court for the purpose of taking the account and fixing the date within which the payment must be made to the plaintiffs.

(2.) The plaintiffs in the suit had asked for a mortgage decree and the sale of the property described in Schedule Ga In para. 9 of their plaint they stated: The description of the said separate 4 annas share is given in Schedule Ga below, and at present under the aforesaid circumstances, that is the sole mortgaged property in suit.

(3.) On 22 December, 1917, pursuant to the judgment of the High Court just mentioned, a preliminary decree for sale was drawn up. The property ordered to be sold was that set out in Schedule Ga. It provided that the suit be decreed and that the amount due to the plaintiffs on account of principal, interest, and costs calculated up to 22 June, 1918 was Rs. 43,331-7-8 and that such amount should bear interest at the rate of six per cent, till realization. It was further provided that if the defendants did not pay the amount into Court on or before 22nd June 1918 the mortgaged property as set out in Schedule Ga of the plaint or a sufficient part thereof should be sold and the proceeds paid into Court and applied in the payment of what was declared due to the plaintiffs. On 9 November 1918 the final decree following the preliminary decree was made. The money calculated to be due was stated to be Rs. 43,331-7- 8 together with certain other interest at the rate of six per cent. and the property directed to be sold was that stated in Schedule Ga, as in the preliminary decree. On 3 February 1919 the mortgagors obtained leave from the High Court to appeal to His Majesty in Council and a stay of execution of the mortgage was granted on condition that the mortgagors gave security for the sum of Rs. 6000. Apparently that security was not given and execution proceedings under final decree proceeded. However in March 1922 an application was made by the mortgagors to the Subordinate Judge at Alipore for stay of further execution pending the decision of His Majesty in Council and such stay was granted. On 14 July 1922 the appeal came before the Privy Council which decided against the appellants and on 10 August 1922 the order of His Majesty in Council concerning the appeal was published wherein it was stated that the appeal ought to be dismissed and the decree of the High Court dated 5 June 1917 affirmed. Thereafter, some time in 1925, execution proceedings to enforce the decree were started by the mortgagees in the Alipore Court. Those proceedings were opposed and on certain occasions the decisions of the Court at Alipore in favour of the mortgagees were brought on appeal to the High Court and dismissed. The execution proceedings dragged on until 1930 when the property was put up for sale and the Nazir reported that there were no bids. Apparently nothing more was done by the mortgagees until 12 July 1934 when they again applied to the Court for execution of the decree of sale. Thereafter various objections were taken by the mortgagors. On 7 September 1935 the Subordinate Judge made an order overruling the objections raised by the mortgagors for the sale of the property and an appeal was brought by the present appellant to this Court. There were various grounds set out in the memorandum of appeal. The first was that the executing Court ought to have held that the decree now sought to be executed was drawn up long before the order of His Majesty in Council was passed and as such was not in accordance with the said order of His Majesty in Council and cannot be executed as any such order or otherwise.