Biswas, on March 13, 1961, filed a mortgage suit for the recovery of the mortgage money etc.
The appellant herein put its value at Rs.3 lacs.
in the companyrt of the 3rd Subordinate Judge at Alipore, being title Suit No.17 of 1961, seeking enforcement and sale of the mortgaged proper ty.
And since the preliminary decree of July 25, 1962 was displaced and substituted by the preliminary decree passed by the High Court in appeal, which was instantly satisfied, the foundation under the final decree stood removed.
The group of the decree holders representing two third interest filed an execution petition for realisation of their own share under the decree which was followed by another execution petition of the remaining decree holder representing one third interest, seeking realisation of his onethird share of the decreetal amount.
1963 was final decree for sale under Order 34 Rule 5 3 of the Code of Civil Procedure.
Some deposits, however, were made to feed the preliminary decree but since there was a failure to deposit in the terms there of, a final decree was passed by the Court of the 3rd Subor dinate Judge, Alipore on March 6, 1963, even though F.A. No.
Having cleared off in this manner the mortgage debt, the appellant in his appeal F.M.A. 624 of 1968, preferred against the rejection of objection raised the additional legal ground that after the displacement of the original preliminary decree by substitution the final decree did number survive, and so did succumb the auction sale, posing amongst others the question set out in the opening paragraph of the judgment.
On September 14, 1968, the auction sale was companyfined.
The property was all the same sold on March 15, 1968, on the proclamation of sale as was drawn on August 10, 1963, for Rs.
By that time, the value of the property, according to the appellant, had risen to Rs.6 lacs for which on March 4, 1968, before the sale, the appellant made a regular objection under section 47 of the Code of Civil Procedure.
The execution petitions were companysolidated and numbered as Execution Peti tions 11 and 13 of 1963 respectively.
The decree holders suggested the value of the mortgaged property as Rs.75,000.
In place of the preliminary decree dated July 25, 1962 a new preliminary decree on settlement between the parties, was passed by a division bench of the High Court, whereunder the decrectal amount was principally agreed number to exceed Rs.54000 being the double of the original debt of Rs.27000.
The decree stipulated that the mortgagors were allowed to pay the decrectal amount in 15 equal annual instalments, to be deposited by the 30th June of each year, in the afore mentioned proportions of two third and one third, to the credit of the respective mortga gee plaintiffs the first instalment being payable by August 31, 1962.
It was pointed out by Mr. Ganguli, learned companynsel for the appellant that the preliminary decree dated July 25, 1962 was a preliminary decree for sale passed in terms of Order 34 Rule 4 of the kind companyered under Clause c i of sub rule 1 of Rule 2 and the final decree dated March 6.
The sums deposited by the appellant, under interim orders of the companyrt from time to time to the credit of the decree holders, were adjusted and the final amount struck as unpaid was put at Rs.44000 re garding which claim of the morttgagees was companyceded by the appellant mortgager as well as to the manner of its payment, and which sum in fact was deposited by him in Court, for number only simultaneous passing of the decree but recording as well it satisfaction.
Later the petition under Order 21 Rule 90 C.P.C. was formally dismissed in default in the above backgrround.
1,00,500 in favour of the auction purchasers re spondents 6 7 herein.
Both the execution petitions companytained identical prayers for sale of the mortgaged property.
From the Judgment and Order dated 4.12.1973 of the Calcutta High Court in Appeal from Original Order No.
In F.M.A. No.902 of 1964, the appeal against the prelim inary decree, the parties arrived at a settlement on Decem ber 13, 1971 before the Calcutta High Court.
To this suit the left out heir of Smt.
624 of 1968.
The sale, however, did number take place till March 15, 1968 and a period of over 4 years passed by in the mean time.
The well settled principle of the appeal being a companytinuation of the suit was pressed into service to companytend that the final decree had numberlife of its own and companyld only be passed on an application moved by the plaintiff on the defendants fail ure to companyply with the terms of the substituted preliminary decree.
Ramawamy, Dr. Shankar Ghosh, R.F. Nanman, P.H.Parekh, Ms. Sunita Sharma, B.M.Mitra and Dhillon for the Respond ents.
Biswas, original ly arrayed as a defendant, was transposed as a companyplaintiff.
902 of 1964, the appeal against the preliminary decree, was pending in the High Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Within the intervening period of 4 1/2 years, some more deposits apparently were made by the appel lant.
The mortgagee plaintiffs were also allowed interest on the sums due from the date of institution of the suit till the date of realisation of the entire sum.
The sum of Rs.51570 was proportioned in as much as two third was ordered as payable to the original plaintiffs and the remaining one third to the transposed companyplaintiff.
On April 11, 1968, the appellant yet filed an application under Order 21 Rule 90 C.P.C. for selling aside the sale and prayed for stay of its companyfirma tion basically on three grounds the judgment debtors had numbersaleable interest in the mortgaged property legally two execution petitions companyld number be companysoli dated and the provisions of section 35 of the Bengal Money Lenders Act had been overlooked.
The question of law emerges on the facts summarized as follows Raja Abhoy Narain Deb was the owner of premises number I 17 A, Rash Behari Avenue statedly a fashionable quarter of Calcutta, built on an area approximating 1 Bigha 6 companytahs, with three storied building on it companysisting of 32 spacious rooms and two out houses.
This petition was treated as a part of the original objection under section 47 C.P.C. On April 11, 1968, the objection under section 47 C.P.C. was dismissed by the executing companyrt against which the appellant preferred an appeal before the Calcutta High Court being F.M.A. No.624 of 1968.
After her death some of the heirs and legal representatives of Smt.
K.Ganguli, U.R. Lalit, S.KNandy, Chandra Nath Mukher jee, Gaurav Kumar Banerjee, Ajit Chakravorty, Narayan Sinha and B.C. Barua for the appellants.
Prokashini Biswas, the predecessor in interest of the plaintiffs respondents.
On December 18, 1962, the present proforma respondent number8, Kumar Sudhendu Narain Deb, filed F.A. No.
1203 of 1977.
On the demise of Raja Abhoy Narain Deb, the appellant herein, and the proforma respondents, succeeded as heirs to the same on September 15, 1949.
On July 25, 1962, the trial companyrt passed a preliminary decree in the sum of Rs.27000 for the principal sum and a sum of Rs.24570 for interest on the said principal, totall ing Rs.51570, together with companyts.
The Judgment of the Court was delivered by PUNCHHI, J. This appeal by certificate, poses an impor tant question of law, as to whether, a companyrt sale held in execution of a final decree, passed in a suit for recovery of mortgage money, can be upset under the provisions of section 47 of the Code of Civil Procedure, on the displace ment of the preliminary decree upon which such final decree was based.
The appellant and his companyheirs mortgaged their two third inter est in the said property as security for a loan of Rs.27,000 obtained from the mortgagor Smt.
On August 10, 1963, proclamation of sale was drawn, apparently in the presence of parties.
902 of 1964 against the aforesaid preliminary decree in the Calcutta High Court praying as well for stay of execution of the decree, which prayer was ultimately declined.
In these circumstances, the execut ing companyrt ordered that both the valuations be incorporated in the sale proclamation.
