- (1.) This is an execution second appeal by a decree-holder whose application for execution has been dismissed by the lower appellate Court which sustained the objection of the judgment-debtor. The decree-holder had a simple money decree against the judgment-debtor dated 10th May 1927 which had been upheld in appeal, the appellate order of this Court in second appeal being dated 12th February 1931. An application was made under Order 21, Rule 11. for execution of the decree. The method in which execution was desired in column 10 of the form states: The decree-holders say that Rs. 1,693-11-6 may be caused to be realized by attachment and sale of the property given in the inventory attached hereto.
(2.) This was the ordinary application for execution of a simple money decree by attachment and sale of the property under Order 21, Rule 30. No objection was taken to this application as such but on 10th April 1933, the judgment-debtor filed an objection stating that the judgment-debtor had hypothecated a certain house which had been attached in lieu of the amount due to the decree-holder by security bond, dated 28th March 1928, and as long as the decree-holder did not file a suit in the Court on the basis of the security bond and obtain a decree for sale and for enforcement of the hypothecation lien the said house could not be sold in execution of the decree for the amount according to law. The Court of first instance held that it was the original decree which was under execution and there was no proceeding in execution for realising the security money, and the objection was dismissed. The judgment-debtor made an appeal to the lower appellate Court in which he urged that the amount payable under the decree of the original Court and costs of the appellate Court decrees had merged in the security bond and that no amount remained outside the the security bond which can be retailed by the execution Court, and therefore it was necessary for a suit to be brought on the hypothecation bond. The lower appellate Court framed an issue: Whether the house could be put to sale in execution of the decree without the decree holder obtaining a decree under Order 34, Rule 5, Civil P.C., in respect of that house by a separate suit.
(3.) The lower appellate Court failed to notice in its judgment that the application was an ordinary application for execution of a simple money decree by attachment and sale and it appears to have persuaded itself that the application was one for realisation of the security bond. It held that a suit must, be filed for the sale of the property mortgaged by the judgment-debtor and the application in execution was dismissed. In this Court learned Counsel for the judgment-debtor relies on the ruling of a Full Bench in Khair-un-nissa Bibi v. Oudh Commercial Bank, Fyzabad 1933 All. 269. In that case the appellant sued for a decoration that he was not bound by the first final decree for sale passed in a mortgage suit. The suit was dismissed and she filed an appeal in the High Court and applied for an order restraining the respondent from executing the decree for sale. The Court ordered an additional security of Rupees 6,000 to be deposited. The appeal was dismissed by this Court and the respondent applied for the sale of the property in execution proceedings. On p. 145 (of 1933 A.L.J.): The question to be determined is whether for the realization of security given on 14th May 1926, by Khair-un-nissa Bibi, the Oudh Commercial Bank should have recourse to a suit or whether it can execute any decree or order, and if so, what decree or order.;