BHUDEO PRASAD Vs. SRI NATH

JUDGEMENT

(1.) This is an appeal by Bhudeo Prasad, plaintiff. The facts may be stated in some detail. The suit by the plaintiff was for the recovery of a sum of money on the basis of a mortgage executed by one Babu Lal. The defendants to the suit were the brothers of Babu Lal and one Sri Nath who was a subsequent transferee of 2/3rds of the mortgaged property. The main contesting defendant was Sri Nath and I am concerned with his defence only. His defence was that by reason of an order passed by an executing Court on 28 January 1931 the mortgagee was not entitled to proceed against 2/3rds of the mortgaged property in possession of Sri Nath. It appears that 1/3 of the mortgaged property was put up to sale in execution of a simple money decree and the property was attached by the amin on 13 April 1930. On 23 April 1930 Bhudeo Prasad filed a certain petition in connexion with which an order was passed by the executing Court on 28 January 1931, and it is said that this was an order passed by the executing Court under Order 21, Rule 62, Civil P.C., and as no suit was filed under Order 21, Rule 63, Civil P.C., the order was conclusive. Some time afterwards, the exact date is not known, Sri Nath purchased another 1/3 portion of the mortgaged property, and his contention is that the order of the executing Court dated 28 January 1931 affects not only 1/3 portion of the mortgaged property purchased by him at auction but affects the subsequent 1/3 portion of the mortgaged property purchased by Sri Nath by private treaty. The trial Court held in favour of Sri Nath's defence so far as 1/3 portion of the property purchased at auction was concerned but repelled his defence so far as 1/3 of the property purchased by private treaty was concerned. The lower Appellate Court has upheld the defence of Sri Nath both as regards 1/3 portion purchased at public auction and 1/3rd portion purchased by private sale, and hence there is this appeal by the plaintiff Bhudeo Prasad be. fore me, and it is contended that the Courts below are wrong and neither the 1/3 purchased at auction nor the 1/3 purchased at private sale by Sri Nath can be saved from the operation of the mortgage. I have already hinted briefly in an earlier portion of my judgment all the circumstances under which the plaintiff filed an application on 23 April 1930 and the Court passed an order on 28 January 1931. When the 1/3 portion of the mortgaged property was attached in execution of the simple money decree Bhudeo Prasad filed an application on 23 April 1930 which might be quoted in extenso. The application is to the following effect: In the abovenamed suit the decree-holder has attached and put up for Bale property mentioned below but that property is mortgaged with the petitioner by means of a mortgage without possession dated 16 June 1923 executed by Babu Lal for Rs. 2000 with interest at the rate of Re. 1-8-0 per cent, per mensem. Therefore it is prayed that at the time of auction notification of the mortgage might be made.

(2.) The lower Appellate Court mentions the various steps that were taken by the executing Court in connexion with the proclamation for sale. Separate notices were issued under Order 21, Rule 66, Civil P.C., to the judgment-debtor and to the decree, holder and separate notices were issued in connexion with this application made by the mortgagee Bhudeo Prasad. Some evidence was taken presumably because it was pleaded by the judgment-debtor that the mortgage had been paid up. The evidence, is far as I can gather, was on behalf of the mortgagor alone and not on behalf of the mortgagee and the executing Court passed iihe following order on 28 January 1931: The objector alleges that the property sought to be sold is subject to his mortgage. The house was purchased by Babu Lal, brother of judgment- debtor, for Rs. 1400 on 29 August 1921. He borrowed Rs. 2000 on the security of this house by mortgage) deed dated 16 June 1923. He borrowed this money for the purpose of thekah business as it is clear from the mortgage deed itself. Babu Lal started theka business. He took Shiam Lal as his partner. Thn partnership rokar book has entry of payment of Rs. 1000 on 29 August 1923 and of Rs. 950 on 9 January, 1929. The entries were made by the Munib at the instance of Babu Lal, The money being borrowed for thekah business, out of the thekah income the debt was discharged. Babu Lal is dead. I see no reason to doubt the genuineness of the entries. Rs. 950 being paid within 7 months of the execution of the mortgage deed, the remaining Rs. 50 and interest must have (been) paid. The deed appears to be discharged and so I dismiss the application.

(3.) It is said that this was an order passed under Order 21, Rule 62, Civil P.C., and therefore Bhudeo Prasad, against whom the order was made, should have instituted a suit to. establish the right which he claimed to the property in dispute, but as he did not file any such suit within a year of the order, the order was conclusive and it is not open to Bhudeo Prasad to say that the mortgage had not been discharged. As is clear, the order of the executing Court dated 28 January 1931 winds up by saying. "The deed appears to be discharged and so I dismiss the application." When this case was before me on a former occasion on 22nd December 19381 remitted an issue to the Court below. The issue was, "Has the mortgage in suit been paid up, and the finding returned by the Court below is that the evidence on the record falls short of proving that the mortgage in suit has been paid up. No objections have been taken to this finding by either of the parties and the finding of the lower Appellate Court must be accepted for what it is worth. The position therefore is that there is a finding of a competent Court obtained on the regular side to the effect that the mortgage deed in suit has not been paid up, and there is the contradictory finding of an execution Court in a summary proceeding that the mortgage in suit has been discharged, and I have in this second appeal either to reconcile these two findings, if such a thing is possible, or to give effect to that finding which predominates as a matter of law. It is contended by the plaintiff-appellant that the earlier finding of the learned Munsif sitting as an execution Court on 28 January 1931 is of no avail inasmuch as that finding was arrived at in connexion with the drawing up of the sale proclamation, whereas on behalf of the defendant-respondent Sri Nath it is said that the finding was given under Order 21, Rule 62, Civil P.C. The real question for determination in a matter like this is whether the petition of 23 April 1930 by Bhudeo Prasad was a petition of objection or claim under Order 21, Rule 58, Civil P.C., or a petition for the purposes of notification under Order 21, Rule 66, Civil P.C., so that the Court might specify fairly and accurately the incumbrances to which the property sought to be sold was liable. Reliance was placed by learned Counsel for the parties on several authorities to which reference has been made in the judgment of the lower Appellate Court. I have considered every one of these cases save the Oudh cases, and I think that except the cases in Mohit Narain Jha v. Thakan Jha (1925) 12 A.I.R. Pat. 500, Debi Das V/s. Rup Chand and Niwal Kishore V/s. Khiali Ram (1929) 16 A.I.R. lah. 865 the others have not a material bearing.