Patna High Court
William Maling Grant And Ors. vs Suraj Mal Marwari And Ors. on 30 November, 1922
Equivalent citations: 72IND. CAS.860, AIR 1923 PATNA 134
JUDGMENT Das, J.
1. This is an appeal on behalf of the decree-holders against an order of the learned Subordinate Judge of Bhagalpur, dated the 30th April 1921 in a proceeding for execution of a decree.
2. It appears that the decree-holders wanted certain incumbrances to be notified in the decree. They made their application to that effect to the Court under the provisions of Order XXI, Rule 66 of the Code and sale proclamation as finally drawn up by the Court did notify those incumbrances., Thereafter, the respondents who were the petitioners in the Court below made an application which is to be found at page 1 of the paper-book. That petition is as follows:
These petitioners have come to know today that the decree-holders have cunningly shown certain incumbrances on the properties entered in the sale proclamation. This is contrary to the real state of things. A a matter of fact, the decree under execution is on the basis of a bond that was executed before the debts referred to in the sale proclamation were contracted and if the said properties be sold subject to the liabilities mentioned in the sale proclamation, they won't fetch adequate price. This will cause immense loss to the judgment-debtors. The deecree-holders have no right to cause the properties to be sold subject to the said liabilities which are contrary to the real state of things, nor is the decree under execution of such nature. The mortgaged properties cannot, according to law, be sold subject to those incumbrances.
3. This petition was presented by the judgment-debtors under the provisions of Section 47 of the Code and they invited the Court to hold in substance that the properties could not be sold subject to the incumbrances as notified in the sale proclamation. The learned Subordinate Judge who dealt with this application thought that as the decree-holders did not produce before him the mortgage-bonds or the pattas which according to the decree-holders constituted the incumbrances on the land the properties could not be sold subject to these incumbrances. In the result he allowed the objection of the judgment-debtors.
4. It was argued by Mr. Das on behalf of the respondents judgment-debtors that the order of the learned Subordinate Judge being an order in a proceeding under Order XXI, Rule 66 of the Code is not an appealable order. In my view the contention does rot deserve any success; the proceedings under Order XXI, Rule 66 were concluded long before the petition, upon which the order of the 30th of April 1921 was passed, was presented. The application of the judgment-debtors did not raise any question as to the terms on which the sale proclamation should be settled, it raised the question whether the Court could sell the properties subject to the incumbrances. In other words, the question raised by the judgment-debtors was a question relating to the execution of the decree. In my opinion the order of the learned Subordinate Judge was an order under Section 47 of the Code and is accordingly appealable.
5. On the merits, there is nothing at all to be said in favour of the view of the learned Subordinate Judge. The sale proclamation did notify those incumbrances. There is no dispute between the parties that these incumbrances do exist, in fact, the assertion in the petition that the debts referred to in the sale-proclamation were contracted after the date of the decree is undoubtedly incorrect as the facts show. The learned Subordinate Judge could not in those proceedings go behind the sale proclamation which was settled upon notice to the judgment-debtors.
6. The order of the Subordinate Judge must accordingly be set aside.
7. The appellants decree-holders are entitled to the costs of this appeal.
Adami, J.
8. I agree.