Kapur, J. - (1.) THIS is an appeal against the order passed in execution by the Senior Subordinate Judge of Delhi, overruling the objection of the judgment -debtor with regard to the existence of an order of sale in a mortgage decree.
(2.) A preliminary decree for sale was passed on the 16th of December, 1944, by which Rs. 16,484/6/ - were awarded as mortgage money inclusive of costs, charges and expenses. The principal sum calculated up to the date of the decree was Rs. 15,200/ -. The decree also awarded four months interest at 9 per cent per annum and future interest at 6 percent per annum on Rs. 10,000/ -. On the 3rd of January, 1946, the decree -holder applied to the Senior subordinate Judge, Delhi, for a final decree and on the 8th of April, 1946, the Senior Subordinate Judge ordered "The preliminary decree is made final. The papers may be filed." But evidently no final decree was drawn up. Appeal against the preliminary decree was taken to the Lahore High Court and Anr. one against the final decree was filed on the 13th of May, 1946, to which a note was added praying that filing of the decree be dispensed with as it had not till then been prepared. The appeals were decided by a judgment of this Court on the 15th of February 1948, and a composite decree was drawn up. Unfortunately this decree was not drawn up in accordance with the provisions of the Code of Civil Procedure and the forms given therein. The decree drawn up in this Court was in the following term: It is ordered that the appeal be accepted and preliminary and the final decrees of the Senior Subordinate Judge, Delhi, dated the 16th of December, 1944, and the 8th of April, 1946, respectively as described overleaf be and the same are hereby modified by decreasing the decretal amount by a sum of Rs. 1,000/ -. The Plaintiff shall now be entitled to recover a sum of Rs. 14,200/ - by sale of the mortgage property. Future interest for a period of four months shall be computed at the rate 7½ per cent per annum and thereafter at the rate of 6 per cent per annum. In every other respect the preliminary decree and the final decree be confirmed. As far as I can see this decree does not conform to the forms given in the Code of Civil Procedure and is certainly very defective inasmuch as the form prescribed under Order XXXIV Rule 5, Code of Civil Procedure, has not been followed. In form 6, meant for decrees under Order XXXIV Rule 5, it is provided: It is hereby ordered and decreed that the mortgaged property ... or a sufficient part thereof be sold and that for the purposes of such sale the Plaintiff shall produce before the Court ... all documents in his possession or power relating to the mortgaged property. In the second clause of this form the judgment -debtor is entitled to the balance after the decree is paid off. It is this defect in the drawing up of the decree which had led to the defects which have arisen in the case.
(3.) ON the 31st of August, 1948, the decree -holder applied for execution and to it he attached a copy of the decree of this Court. Nobody seems to have looked at the copy and on the 16th of May, 1949, a proclamation for sale under Order XXI Rule 66 was drawn up. Before the sale took place, i.e., on the 26th of May, 1949, the judgment -debtor filed objections saying 'inter alia' that there was no properly drawn up decree ordering the sale but in spite of it the sale took place on the 13th of June, 1949, and on the 20th of August, 1949, the objections of the judgment -debtor were overruled because, according to the executing Court, the judgment of this Court had said that the Plaintiff was entitled to recover Rs. 14,200/ - by sale of the mortgaged property.;