Shakuntala Devi And Ors. vs R.K. Mehra And Ors.
1994 Latest Caselaw 851 Del

JUDGMENT

M.J. Rao, C.J.

(1) This case has been heard elaborately at the stage of admission after notice, and is being disposed of. The case has had a "chequered career" as mentioned by the learned Single Judge inasmuch as the suit out of which these proceedings arise was filed in 1959.

(2) The appellants are the legal representatives of the original mortgagor, one Bhagmal Jain. He mortgaged the property on 19.9.1958 to Shri Bal Kishan Dass (whose legal representatives "are respondents 1 to 9). The mortgagee filed a suit on 18.7.1959 for recovery of the amount due under the mortgage by sale of the property. During the pendency of the suit, the mortgagor died inSeptember,1961 and the appellants were brought on record as his legal representatives.

(3) On 29.6.1963 the trial court passed a preliminary decree in favor of the mortgagee. The decree was in the sum of Rs. 99,000.00 and odd with interest.

(4) In the meantime, one Shri Jatinder Parkash obtained a money decree against the mortgagor,Shri Bhagmal Jain on 17.1.1963 and thereafter the appellants were substituted as legal representatives of the said Shri Bhagmal Jain. In execution of the money decree there was a sale on 14.12.1964. Obviously, in respect of the equity of redemption that remained with the mortgagor or his legal heirs, the same was purchased by one Shri Harbans Lal Naseem for Rs. 54,000.00. A sale certificate was issued in favor of the said purchaser on 6.1Q.1966 and he obtained the possession of the property. He,however, obtained constructive possession of the rear portion of the property which was an open plot occupied by a tenant for purposes of coal depot. The said Shri Harbans Lal Naseern thereafter inducted several tenants in different portions of the property and also personally occupied another portion of the property.

(5) While things stood thus,in the appeal filed by the mortgagor against the preliminary mortgage, decree dated 26.9.1963, there was a slight modification increasing the decree to Rs. 1,76,718.88 with costs and future interest. On 12.8.1971 the trial Court (learned Single Judge of the High Court sitting on the Original Side) passed a final decree in favor of the mortgagee, Shri Bal Kishan Dass inasmuch as the appellants/judgment debtors in the mortgage decree had failed to pay or deposit the amount covered by the decree. The Court in the same order dated 12.8.1971 directed auction of the property on a specific date. Thereafter, the mortgagee,Shri Bal Kishan Dass died and his legal representatives were brought on record on 25.9.1972. It appears that a final decree in the mortgage suit was actually drawn up on 1.12.1971, but this was done without an application by the decree holder for the passing of a final decree. In fact, as mentioned earlier, when the Court passed a final decree on 12.8.1971, it also directed the sale of the property by proclamation. In other words, it appears that the Court directed the sale without any specific execution application being filed by the legal representatives of the mortgagee. But the fact remains that subsequently a final decree was in fact drawn up on 1.12.1971. Pursuant to the order for sale dated 12.8.1971 the property was sold on 25.6.1973 and the 10th respondent namely, M/s Delhi Packaging (P) Ltd became the purchaser of the property.

(6) The property is said to be land and building of about 500 and odd square yards in Karol Bagh. The sale was confirmed on 24.11.1978 and a sale certificate was issued in favor of the 10th respondent. Thereafter on 4.8.1981 the legal representatives of the original mortgagor filed the present applications under Order 9, Rule 13 for setting aside the final decree and also another application under Order 21, Rule 90 and Section 47 Civil Procedure Code for setting aside the final de- cree,proceedings in the auction sale and for declaring them as null and void. These applications were rejected by the learned Single Judge on 23.3.1993. Though two applications were before the learned Single Judge and they were rejected, only one appeal has been preferred by the appellants.

(7) Learned counsel made a very elaborate submission stating that on 12.18.1971 when a final decree was passed under Order 34, Rule 5 pursuant to the preliminary decree dated 29.6.1963, as modified in appeal on 31.8.1970, the trial court (learned Single Judge of this Court on the Original Side) ought not to have directed the sale of the mortgaged property without an execution application being filed under Order 21, Rule 11 (2). Learned counsel submits that unless there is an application in writing the Court has no jurisdiction to order execution in the case of a mortgage suit. Learned counsel also submits that the fact that subsequently a final decree was drawn up on 1.12.1971 cannot validate the sale held on 25.6.1973 inasmuch as the Court ought not to have passed a final decree on 1.12.1971 as there was no judgment directing a final decree to be passed. According to the learned counsel Form No.6 in Appendix D of the Code of Civil Procedure read with the judgment of the Allahabad High Court in Anant Ram vs. Basdeo Sahai and Others would show that an order directing the passing of a final decree is only an order and not a judgment, and that final decree passed on 1.12.1971 is not a ministerial act. Learned counsel also submitted with reference to the judgment of the Privy Council in Raghunath Das and Others vs. Sunda. Das Khetri and Another (AIR 1914 Privy Council 129) that a notice under Order 21, Rule 22 Civil Procedure Code has to be issued after an execution application is filed. In the present case no such execution application was filed, no notice was issued under Order 21, Rule 22 and for that reason also the execution proceedings are null and void.

(8) Reliance is also placed on the judgment of the Supreme Court in Jiwani vs. Rajmata Basantika Devi & Ors. for the proposition that notice of the execution application under Order 22, Rule 22 was necessary otherwise the proceedings are violative of principles of natural justice and are void. Learned counsel also referred to Rajagopala Aiyar vs. Ramanujachariyar and Another (AIR 1924 Madras 431). Bhagabat Sit vs. Balaram Sit and Jagjodhan Singh vs. kirpa Singh to say that an execution application in writing was necessary and then a notice under Order 21, Rule 22 was necessary and without them the proceedings are null and void and therefore, the execution proceedings and the sale must be deemed to be void under Section 47 of CPC.

(9) Learned counsel for the respondents relied upon a decision in Mohammad Sardar and Others vs.. Mustakim and Others (AIR 1934 Lahore 58) to urge that there is no mandatory rule that while passing a final mortgage decree the Court could not order execution on the basis of the request of the decree holder. Learned counsel submitted that the said case is an authority for the proposition that, at the stage of the final decree, when the Court has all the facts before it including the names of the parties, the amount liable to be recovered under the mortgage, the description of the property, the payment or absence of payment by the judgment debtors etc, there was nothing wrong in the Court straightaway ordering the execution.

(10) Questions that arise for consideration are : (A)Whether the entire execution proceedings are to be declared a nullity as contended by the appellants under Section 47 Cpc ? (b) Whether the appellant who had mortgaged the property and whose equity of redemption was also sold away in another decree, can maintain any application under Section 47 Civil Procedure Code ?

(11) In our view, it is sufficient to-decide the second question. In fact, at the commencement of arguments in this case we raised the question whether once the equity of redemption which remained with the mortgagor was also sold pursuant to another money decree and the same vested in the auction purchaser therein, the mortgagor had any locus standi to file an application under Order 21, Rule 90 or under Section 47 Cpc ?

(12) Learned counsel for the appellants, however, wanted to submit that if an owner of a property mortgages the same for consideration and thereafter the equity of redemption remaining with the mortgagor is also sold away in execution of another decree or otherwise, the mortgagor would still continue to have some interest in the property to file an application either under Order 21, Rule 90 or under Section 47 Civil Procedure Code or under Order 9, Rule 13.

(13) We are of the view that the second question referred to above goes to the root of the matter and, therefore, it is not necessary for us to decide other points mentioned earlier, namely whether there ought to be an execution application in writing and a notice under Order 21, Rule 22 etc. The factual position in 1981 when the present application under Order 21, Rule 90 read with Section 47,CPC was filed was that they had already lost their equity of redemption in the execution proceedings taken out in the simple money decree and nothing remained with them even by that date. We have already pointed out that a money decree was obtained by one Shri Jatinder Parkash against the mortgagor, Shri Bhagmal Jain on 17.1.1963 and on 14.2.1964 there was a sale of the equity of redemption for Rs. 54,000 in favor of Shri Harbans Lal Naseem; the sale certificate was issued in favor of the said purchaser on 6.10.1966 and he applied for possession in 1967 and he got possession.

(14) It is also an admitted fact that the said auction purchaser also filed a separate application under Order 21, Rule 90 questioning the sale pursuant to the mortgage decree on 12.8.1971 and when the matter was taken up to the Supreme Court he withdrew the application filed under Order 21,Rule 90. In other words, the equity of redemption vested in the auction purchaser under the money decree and after filing an application for setting aside the sale dated 12.8.1971 (held pursuant to the mortgage decree), the said auction purchaser withdrew the same. That would mean that the sale pursuant to the mortgage decree has become final for the only person who could have questioned the same,namely, the purchaser of the equity of redemption, withdrew from the contest. In our view, once the mortgagor loses the equity of redemption, either by assignment or by private sale or Court sale, he has no locus standi to file any application either under Order 9, Rule 13 or under Order 21, Rule 90 or under Section 47 CPC.

(15) We are unable to understand as to how once the remaining interest, namely, the equity of redemption is also sold away in 1964, the mortgagors could come forward with any application either to set aside the final decree in the mortgage suit or to set aside the sale held under Order 21, Rule 90 or under Section 47 CPC.

(16) Learned counsel for the appellants,however, submitted that the appellants had filed a separate suit for a declaration that they still continued to have equity of redemption with them. He requested that we should not decide the said issue in this appeal. We are unable to agree. Merely because such a suit is filed, we cannot allow this F.A.O. to be kept pending for the purpose of redemption. For all the above said reasons, the appeal fails and is dismissed.