LAWS(RAJ)-1973-10-10

ROOP CHAND Vs. BHAG CHAND

Decided On October 31, 1973
ROOP CHAND Appellant
V/S
BHAG CHAND Respondents

JUDGEMENT

(1.) A preliminary decree for sale of mortgaged property for a sum of Rs. 13,430/8/6 together with interest and costs of the suit was passed in favour of Bhagchand, plaintiff, by the Court of Senior Civil Judge, Jaipur City, on July 26, 1956. The judgment -debtor was allowed six months' time to make payment of the decretal amount. As he failed to make payment of the aforesaid amount within the stipulated time, a final decree for sale of the mortgaged property was passed on April 24 1957 and sum of Rs. 15,279/9 was declared to be due to the plaintiff from the defendant. It was also provided in the final decree that the decree -holder shall be entitled to subsequent interest 'as may be payable under Order 34 Rule 11, C.P.C.' The final decree by the learned Senior Civil Judge was not challenged by either of the parties and as such it became final and conclusive.

(2.) THE decree -holder filed an execution application on September 14, 1957, claiming an amount of Rs 473/12/ - as due under the decree and made a prayer for sale of the mortgaged property. The judgment -debtor, on receipt of notice under Order 21 Rule 66, C.P.C., submitted some objections, but it appears that he did not press them and the same were dismissed due to his absence. An order for sale of mortgaged property was passed. However, before any further proceeding could take place in the execution case, it was dismissed on May 30, 1960, in default of the decree holder. The judgment -debtor paid a sum of Rs. 8,000/ -during the pendency of the aforesaid execution application.

(3.) THEREAFTER , the decree, holder presented a third execution application on April 29, 1965, and claimed that a sum of Rs. 5, 743/13/ - was still due against the judgment debtor. It was mentioned in the execution application that the judgment -debtor had paid a sum of Rs. 16, 500/ - from time to time towards the decretal amount. The judgment -debtor filed objection on September 13, 1965, and stated than an account be taken and it may be determined as to what amount was still due and payable under the decree. The judgment debtor filed further objections on December 4, 1965 and submitted that the decree holder had been over paid and he should be directed to refund the amount paid to him in excess of the decretal amount.