OUDH COMMERCIAL BANK, LTD Vs. THAKURAIN BIND BASNI KUER

JUDGEMENT

(1.) This is a decree-holder's appeal. It is brought by the Oudh Commercial Bank, Ltd., Fyzabad, against an order of the Chief Court of Oudh dated 14 August 1934 dismissing an application for the execution of a final decree for sale passed on 22 January, 1916, by the Subordinate Judge, Mohanlalganj, Lucknow. The respondents are the representatives of Babu Narindra Bahadur Singh (herein called the "judgment-debtor") who died in 1936 while the present appeal was pending. He was the grantor of a mortgage to the appellants dated 2nd September 1894 for Rs.2,35,000 at 8 per cent. per annum over a large number of ancestral properties including both proprietary (kham) and under proprietary (pukhtadari) villages. To enforce this mortgage, a suit was brought against him by the appellants in 1911 and a preliminary decree for sale obtained on 31 October 1912 from the Subordinate Judge. On appeal to the Judicial Commissioner's Court this preliminary decree was on 15 June 1915 varied, so as to fix the amount outstanding on the mortgage at Rs. 7,96,763, carrying interest at 4 per cent. from 3 July 1915. Very soon thereafter the Court of Wards, by order of the Government, assumed management of the judgment-debtor's estate, which was not released till 29 September 1917. Accordingly the Deputy Commissioner of Fyzabad, as manager for the Court of Wards, became the defendant in the mortgage suit and the final decree for sale was passed against him (22 January, 1916). It fixed the amount then due at Rs. 8,14,470 with future interest at 4 per cent. on Rs. 7,96,763.

(2.) The proceedings in execution of this decree have been protracted, but apart from the application which has now been brought before their Lordships, consist of an application to the Court which passed the decree (Mohanlalganj) to transfer it for execution to the Subordinate Judge at Fyzabad (7 September 1916); an application to the Fyzabad Court for an order for sale of all the mortgaged property (3 July 1917) ; and an application of 16 January 1922, asking that the previous proceedings, which had been much interfered with by stay of execution and otherwise, should be restored and continued notwithstanding that the Revenue Court and the Court of the Subordinate Judge had consigned it to records.' This last application was granted by order of the Subordinate Judge dated 17 January 1922.

(3.) It appears that when in 1916-17 the appellants were proceeding to enforce their decree for sale the Court of Wards made a bargain with them for time in which to pay off the mortgage debt gradually, the rate of interest to be increased from 4 per cent. to 6? per cent. Sufficient payments had been made under this arrangement to meet this interest and to repay a certain amount of the principal moneys due on the decree, when the judgment debtor recovered the management of his own affairs in September 1917, and repudiated the action of the Court of Wards, maintaining that its intervention in his affairs had been wholly illegal. In December 1917, he carried in objections to the appellants' execution proceedings, maintaining (1) that the final decree for sale was not binding upon him as the Deputy Commissioner did not represent him ; (2) that the Court of Wards had no right to agree to pay interest at a higher rate than the 4 per cent. mentioned in that decree. The Subordinate Judge dismissed these objections (17 May 1918): on appeal the Court of the Judicial Commissioner dismissed the first but gave effect to the second holding that all payments made by the Court of Wards should be credited in reduction of the decretal dues on the footing of interest at 4 per cent. only. To their decree of 16 December 1918, a statement of account was annexed showing the amount outstanding as at that date for which execution could proceed. This sum should have been entered as Rs. 7,65,898, but by an error in calculation it was entered as Rs. 6,70,610: this error was put right on an application under S. 152, Civil P. C., by order of the Judicial Commissioner's Court dated 29 August 1918.