GOKUL BIHARI DAS Vs. KALANDI SENDA

JUDGEMENT

(1.) This is a miscellaneous second appeal arising out of an execution proceeding. The facts are these. The respondents had obtained a mortgage decree against the appellant and in execution of it the mortgaged property was sold and purchased by the decree-holders. The mortgagor, the appellant, got the sale set aside by making a deposit under Order 21, Rule 89, Civil P.C. Thereafter, the decree- holders, respondents, discovered that the interest awarded to them in the mortgage suit was inadvertently omitted from the execution. The learned District Judge has made a mistake in stating that the cost decreed was omitted.

(2.) However, the decree-holders wanted to execute the decree again as a money decree for the amount omitted from the previous execution. As no personal decree had been obtained by them against the mortgagor, the petition was disallowed. They then filed the present petition for execution for sale of the mortgaged property for the realisation of the amount omitted from the previous execution. The judgment-debtor objected and the learned Munsif of Balasore allowed the objection on the ground that the decree-holders having omitted to include this portion of the decree in the previous petition for execution were not entitled to sell the mortgaged property over again for its realization. On appeal by the decree- holders, the learned District Judge ordered the execution to proceed. The judgment-debtor has preferred this second appeal.

(3.) In my opinion the view taken by the learned District Judge is erroneous and his order must be set aside. After the mortgaged properties had been sold in execution of a mortgage decree the mortgage lien came to an end and the decree was satisfied. Thereafter, the mortgaged property cannot be sold again. It is true that the principle of Order 2, Rule 2, Civil P.C., is not applicable to execution Cases, but in my opinion higher principles, as stated above, are involved. By setting aside of a sale under Order 21, Rule 89, Civil P.C., which strictly speaking is a matter between the auction-purchaser and the judgment-debtor and in which the decree-holder is not concerned, the mortgage lien over that property is not revived. The sale is set aside because the amount for which the property was sold has been paid up. When the order of the Court for sale has been carried out, the mortgagee is only entitled to money, the sale proceeds. It is immaterial to him whether he is paid out of the actual sale proceeds or out of the money deposited by the judgment-debtor within the time allowed by law.