L. Madho Lal v. L. Duli Chand

Mukerji, J.:— These are two second appeals which arise out of the following facts: The facts will be stated in so far as they are necessary for the disposal of these appeals and no further. A firm Madho Lal Chiranji Lal, which would be described hereafter by the term firm, held a simple decree for money against one Chiranji Lal Mistry, whom it will be convenient to refer hereafter as the Mistry. The money decree was for Rs. 1,378-14-0 and bore No. 21 of 1927. The Mistry had a mortgage decree passed in his favour against one Dulichand, being No. 134 of 1927. The decree was for a considerable amount, namely, for Rs. 3,402-8-6. The firm in execution of its money decree attached the decree No. 134 of 1927 held by the Mistry. Under the procedure as laid down in the Code of Civil Procedure of 1908, the decree attached should have been executed, and the money thus realized should have been credited towards the decree held by the firm. What however was done was to bring the decree No. 134 of 1927 to sale. It was sold for Rs. 500 and purchased by the firm.

2. The Court executing the simple money decree and selling the mortgage decree found some difficulty in confirming the sale for Rs. 500 inasmuch as the decretal amount covered by the mortage decree was over Rs. 3,000. One of the members of the firm, namely, Chiranji Lal, filed an affidavit to assure the Court that the property mortgaged and ordered to be sold by the decree No. 134 of 1927 was not worth more than Rs. 500. The sale was accordingly confirmed and the simple money decree No. 21 of 1927 was executed for the balance. In execution of this simple money decree the Mistry's house was sold. The sale proceeds satisfied the balance of the decree and whatever remained as the surplus was handed over to the Mistry.

3. The firm having purchased the mortgage decree, proceeded to execute it. The mortgage decree directed the sale of a house belonging to Dulichand and in due course that house was brought to sale and a third, party purchased it for Rs. 1,525. The firm having exhausted the mortgaged-property, made an application under O. 34, R. 6 of the CPC, for the preparation of a personal (money) decree against Dulichand. At this stage the Mistry came forward with an application in which he said that Ins decree had been sold without any information to him; that it had been sold, for a very inadequate amount; that he had received a credit for Rs. 500 only; that the firm had realized Rupees 1,525 by sale of the mortgaged property and that therefore the difference between Rs. 1,525 and Rs. 500 should be treated as lying with the firm in trust for the Mistry. He accordingly asked, that the sum of Rs. 1,025 should be recovered from the firm.

4. The learned Munsif, before whom the two applications were, namely the application of the firm for the passing of a simple money decree against Dulichand and the application of the Mistry for a refund of Rs. 1,025, heard the cases together and came to the conclusion that the firm was not entitled, to a personal decree against Dulichand, that the firm held the sum of Rupees 1,025 to the credit of the Mistry and directed that the firm should pay the money within fifteen days and that in default a decree be prepared in favour of the Mistry and against the firm for the aforesaid amount. The firm being dissatisfied with the two orders passed, went in appeal before the learned District Judge and he came to the conclusion that the Munsif's orders had been passed under Section 151 of the CPC, and that therefore no appeal lay to him. The point that we have to decide at the present stage of the case is whether the two appeals were competent and the learned Subordinate Judge should have heard them. We have to look at the two applications independently.

5. If we look at the application of the Mistry, we find that in substance it is to the effect that the execution proceedings against him had resulted in the sale of a property which should not have been sold and that by the sale of the property the decree-holders had benefited to the extent of Rs. 1,525, while they had given credit to the Mistry only for Rs. 500. In this view urged by the Mistry, the decree-holders were liable to refund Rs. 1,025. This application of the Mistry was in substance an application relating to execution, discharge or satisfaction of a decree and fell within the purview of Section 47 of the CPC. If this view, of ours be correct, an appeal did lie to the learned District Judge. S. 47 is applicable to execution proceedings as much after an order has been passed declaring the decree satisfied as before an order has been made to that effect. Where a decree has been held to have been discharged and one of the parties comes to the Court on the ground that the order has been wrongly passed and should be reviewed or reconsidered, the case would fall under Section 47 of the CPC. This is clear on the language of the section itself, and there are many decided cases on the point. The appeal against the decision passed on the application of the Mistry was therefore maintainable.

6. The finding and order that the application of the firm for the passing of a simple money decree against Dulichand was not maintainable amounted a decree and was appealable as such. The learned Judge in the Court below overlooked this aspect of the case. In the result we allow these appeals, set aside the decrees of the Court below and remand the two appeals, namely, 79 of 1931 and 12 of 1931 (of the Court of the Subordinate Judge of Muzaffarnagar) to the said Court for disposal according to law. As the lower appellate Court did not hear the appeals because preliminary objections were taken by the respondent that no appeal lay and as our opinion is that the appeals were competent, we direct that the appellants shall have the costs of these appeals in this Court at all events.

M.N

7. Appeals allowed.