- (1.) THIS order will dispose of Civil Revision Nos. 2389 and 2399 of 1992 filed at the instance of the Union Bank of India, petitioner against Firm Gupta Glass Company and others, the question involved therein being common.
(2.) PETITIONER-BANK filed a suit against M/s Gupta Glass Company and its partners, namely, Charan Dass, Bhag Mal and Ved Parkash for the recovery of Rs. 5,17,511/- due from them as on August 3,1981, by sale of the mortgaged properties and in case the sale proceeds fell short to meet the decretal amount, by sale of latters' other properties. The defendants besides raising other defences raised an objection that the documents executed by them in favour of the petitioner-bank had not been validly executed and, therefore, the suit was bad on that account. On the pleadings of the parties, a specific issue besides others, was framed, viz. "issue No. 4-Whether the defendant created a equitable mortgage of the property in favour of the plaintiff-bank by way of security as alleged? OPP". The trial Court by judgment and decree dated September 25,1984, decreed the suit. It was held under Issue No. 4 that the documents were executed by the defendants and they had created mortgages of the properties in favour of the petitioner-bank, by way of securities. A preliminary decree was consequently passed for the recovery of Rs. 5,17,511/- with costs and interest at the agreed rate from the date of the suit till its realisation, in favour of the petitioner-bank and against the defendants. It was also held that in the eventuality of the defendants failing to pay the said amount within one month, the petitioner-bank may apply for a final decree for the recovery of the amount by sale of hypothecated/mortgaged/pledged goods and if still the amount is not recovered by such sale, the amount be recovered from the defendants in their individual capacity. There is no dispute that this decree became final and a final decree was passed in favour of the petitioner-bank on June 10,1986, the defendants having filled to pay the amount within one month of the passing of the preliminary decree.
(3.) ON January 15, 1987, the petitioner-bank took out execution. The judgment-debtors filed objections to the execution of the decree. The objections were almost in identical terms as were raised in the written statement filed in the suit. It was, inter alia, contended that only simple interest could be awarded. Creation of equitable mortgage of the properties in favour of the petitioner-bank was denied. In other words, it was alleged that equitable mortgage of the properties detailed in the suit had never been created on October 24, 1976. Objection petition was tried, and dismissed by the executing Court by order dated November 28,1987 by inter alia observing as under : "all the facts were gone into by the trial court while passing the preliminary decree and final decree in the case and no defect can be found in the filing of the execution application by the concerned branch of the applicant-Bank on that score. From para 24 of the judgment available on the main case, it is clearly evident that the defendants also mortgaged their property with the decree-holder. The documents regarding the property which was mortgaged have also been filed in the main case. The applicant is entitled to proceed against the entire mortgaged property as also hypothecated/pledged goods and the objection of the Judgment-debtor that no property was mortgaged with the applicant-Bank is without any substance when from para 24 of the judgment, it is clean that the judgment-debtors had also mortgaged their property. " The judgment-debtors again while filing reply to the application under Order 21 Rule 66 of the Code of Civil Procedure, submitted that the decree was not executable. Objections, as earlier raised, about rate of interest and mortgage of property, were again raised. These objections were also dismissed by order dated April 20, 1991 and the property was ordered to be sold by passing the following order : "case has been called several times but no body is present on behalf of the judgment debtors. Hence, the objection petition filed by the judgment debtors stands hereby dismissed. The property is ordered to be sold as under: Court affixation : 27. 4. 1991 Spot : 6. 5. 1991 Sale : 24. 5. 1991 Report : 30. 5. 1991 Process fee be filed and warrant of sale be issued. To come up for office report on 30. 5. 1991. ";