S. Harbans Singh vs The Co-operative Multipurposes Society

Shamsher Bahadur, J.

1.This is a judgment-debtor''s appeal from the order of the Subordinate Judge 1st Class, dismissing his objections u/s 47 of the Code of Civil Procedure. The respondent-decree-holder. Co-operative Multi-purposes Society, Kotla Dalsingh. obtained a decree for Rs. 14,852-11-0 annas as a result of an award given in its favour and against the judgment-debtor on 17th of March. 1958. The award was obtained by the Liquidator of the Co-operative Society which was in the process of winding up Though the award on the face of it purports to be a simple money decree and is sought to be executed as such, the objection of the judgment-debtor before the executing Court and also in appeal before me is that the decree is executable only as a mortgage decree, the security being one-fourth share of the land belonging to the judgment-debtor The gravamen of the appellant''s objection was that the land actually attached was different from the one which was under the mortgage The objection having been dismissed by the executing Court the judgment-debtor has come in appeal.

Mr. Roop Chand, the learned counsel for the appellant has not produced any document in support of his objections but relies on the previous applications which had been made by the decree-holder where it was mentioned that the debt advanced by the Society to the appellant was on the basis of a mortgage of agricultural land. It is suggested by Mr. Rup Chand that the land having come under consolidation the decree-holder has levied execution in respect of property which is different from the one which was actually mortgaged. There is no proof of any mortgage and I agree with the executing court that in the award which is the sheet anchor of the decree-holder''s proceedings for execution, there is no mention of the security against which the loan was originally advanced. There is on the record a mortgage deed of 25th of June, 1952, but as stated in Waldock''s Law of Mortgages (1950 edition) at page 260,

" a personal action on the covenant for payment is always available as an additional remedy where the security is insufficient to meet the mortgage debt. It has, of course, particular value where the mortgagor has other property which can be reached by a judgment (sic) once the mortgagor is in default the mortgagee is entitled to pursue all his remedies concurrently "

Even if the mortgagee mentioned the existence of a mortgage in the previous execution applications, it is not debarred now from obtaining satisfaction of a simple money decree which the award purports to be and this remedy being concurrent with the sale of mortgaged property, this is not a proceeding to which the judgment-debtor can have any conceivable objection. As it is, there is nothing to impugn the reasoning of the executing Court that a decree has to be executed as it is and the award for which execution proceedings have been levied is on the face of it a money decree. So far as the present execution proceedings are concerned, there is no document to show that the decree holder is debarred from obtaining satisfaction by attachment of land belonging to the judgment-debtor.

In this view of the matter, there is no force in this appeal which fails and is dismised with costs.