Dooli Chand And Others (Decree-Holders), v. Nirban Singh (Judgment-Debtor), .

Appeal from an order passed by the Subordinate Judge of Gya.

In this case the facts are these:—

On the 24th October, 1863 the judgment-debtor executed a mortgage to the plaintiffs of a 14-annas share in Mouza Muchgawan, the plaintiffs themselves being the owners of the remaining 2-annas share of the mouzah. At the time of this mortgage it appears that a suit was pending, and that in this suit one Ajoodhia Pershad obtained an order of the High Court, under which 2 annas, of the 14-annas share mortgaged, were declared to be his, so that the security which the mortgagor contracted under the mortgage of October 1863 to give was reduced to the extent of a 2-annas share. Subsequently the remaining 12-annas share was sold in execution of a decree, and purchased by the plaintiffs themselves, who had, prior to this sale in execution, sold in 1865 to the defendant the 2-annas share of which they had been the actual owners at the date of the mortgage.

In April 1876, the plaintiffs sued upon the mortgage, and having obtained a decree, sought to execute it against the 2-annas share sold by them to the judgment-debtor, and now in his possession. The judgment-debtor objected to execution proceeding, urging that the order in the decree was to the effect that “the mortgaged property be sold in satisfaction of the decretal money,” and that this 2-annas share was not, and never had been, subject to the mortgage.

The Subordinate Judge was of opinion that the 2-annas share was not saleable in execution of the decree, and upheld the objection of the judgment-debtor. Against this order the decree-holders appealed.

Baboo Kally Mohun Doss, and Baboo Nil Madhub Sen, for the Appellants.

Baboo Lall Mohun Doss, for the Respondent.

The following judgment of the Court (1) was delivered by

Ainslie, J.:— The decree-holder obtained a decree on the 22nd February, 1872 on a bond, dated the 24th October, 1863, by which (with other property) 14-annas of Mouzah Muchgawan was mortgaged as security for a debt. It is admitted that, in addition to the 14-annas held by the decree-holder as mortgagee, he had obtained the remaining 2-annas of Mouzah Muchgawan under a conveyance from the judgment-debtors. So that at the date of the mortgage transaction he was proprietor of 2-annas and mortgagee of the remainder.

But there was a suit pending in which one Ajoodhia Pershad obtained a decree declaring his ownership in respect of 2-annas of the village. After this decree the position of the parties was this, that Ajoodhia Pershad was owner of 2-annas, the decree-holder was owner of 2-annas, and the judgment-debtors were owner of 12-annas, which were under mortgage to the decree-holder.

Then on the 20th June 1865, the decree-holder sold a 2-annas share to the judgment-debtor. This 2-annas share of course must be that in which he had a proprietary interest. We, therefore, again find the judgment-debtors in the position of proprietors of a 14-annas share of Mouzah Muchgawan.

There was another decree held by the same decree-holder against the same debtors in execution of which 12 annas of Mouzah Muchgawan were brought to sale and purchased by the decree-holder. The decree-holder now seeks in execution of the decree of 1872 to sell the remaining 2-annas which is in the possession of the debtors as a portion of the mortgaged property.

The contention of the debtors has been that this 2 annas is altogether distinct from the 14-annas mortgaged, and that they are entitled to hold it free of the mortgage.

There can be no doubt that, at the date of the mortgage, there was a 2-annas share held by the decree-holder, which has subsequently passed to the judgment-debtors, and which obviously could not be subject to the mortgage at the date thereof. The contract of the judgment-debtor was to hold 14-annas subject to a mortgage for the repayment of the debt due to the appellant. So long as he had only a 12-annas share in his possession the mortgage security was of necessity reduced to that amount; but if at any time he became owner of 14-annas, the creditor had an equitable right to demand that 14-annas should be subject to the mortgage. This principle has been distinctly recognised in the Specific Relief Act; and it appears to us that there can be no doubt that the decree-holder is equitably entitled to have security, as far as it is possible, for the debtor to give it up to the extent of the 14-annas for which he contracted.

We therefore think that the two annas share in respect of which there has been a dispute in the Court below is properly saleable in execution of the appellants' decree, if, on taking an account of that which has been realised, it is found that there is an outstanding debt.

It is contended that this appeal will not lie; and a case was brought to our notice decided by a Division Bench of this Court-(Miscellaneous Regular Appeal No. 331 of 1878), the decision in which is based upon a ruling of the Bombay High Court in the Indian Law Reports, Bombay Series, Vol. I, page 553. It is, however, unnecessary for us to consider those cases, because we think that when the proceedings are examined, the contention of the appellant must be allowed that these proceedings must be taken as pending from before the date on which the new Code of Civil Procedure came into force; and therefore under the Full Bench decision of this Court all rights of appeal are preserved.

It appears that on the 26th April 1876, the decree-holders made an application for executing their decree by sale of fourteen annas of Muchgawan, being the property mortgaged to them. Subsequently, on the 20th November of the same year, they put in a petition in which they recited that the property mentioned in their inventory had already been converted into money under a sale held in another suit, and asked to have the surplus sale proceeds. Five days later, i.e, on the 25th November, they put in a formal application in the form prescribed in section 212 of the Code of 1859, asking for the payment to them of those surplus sale proceeds.

It is evident that the intention was to proceed against the same property that had been previously mentioned in the petition of April. The first proceedings were dropped, and the application was renewed in this form merely as a consequence of the change in form of the property.

On the application of November 1876, the judgment-debtors pleaded limitation, and the case was then taken up to the High Court. Eventually, on the 28th June, 1877, the debtor's plea of limitation was over-ruled, and the case was remanded to be proceeded with. This was followed by the application of the 6th of April 1878 for a specific order for the sale of the two annas share which had not been converted into money.

Looking at the nature of these several applications, we think that we ought to hold that the whole of them are so connected together, that they form one transaction; and that therefore the proceedings in the case ought to be taken as pending from 1876.

The appeal must therefore be allowed with costs.