JUDGMENT
1. This is a judgment-debtor's appeal arising out of a suit on a puisne mortgage. The mortgagor had on 6th February 1903, mortgaged mauza Khajuri, the village with which we are concerned in this case, and other properties, to a person who had obtained a decree on the foot of his mortgage. The present judgment-debtor Chhote Lal, defendant 3 in the present suit, at an auction-sale purchased mauza Khajuri and subsequently paid off the full amount of the decree. The present suit was brought by one Bansidhar who had obtained a mortgage on 8th March 1911, which covered certain properties including amongst them mauza Khajuri, impleading, amongst others, Chhote Lal as defendant 3. Chhote Lal filed a written statement, but did not otherwise defend the suit. In the plaint, however, the existence of a charge in favour of Chhote Lal was recognized. In the decree in the present suit passed on 24th April 1922, there was no mention of Chhote Lal's charge, and the decree was finally upheld on 12th February 1927. On 12th March 1927, the decree-holder applied for execution by sale of certain properties, including mauza Khajuri. On 14th April 1927, objections were filed by Chhote Lal, of which the two material ones were as follows (we quote from the paper book of E.F.A. No. 291 of 1927):
No. 4-Mauza Khajuri is by no means fit to be sold at auction and under all circumstances the decree-holder cannot without payment of the prior encumbrance either get mauza Khajuri sold at auction or eject the objector, and the objector can 'Use the prior encumbrance as a shield.
No. 5-If in the opinion of the Court mauza Khajuri can be sold at auction, it can be sold at auction subject to the prior encumbrance aforesaid and not otherwise.
2. On 17th May 1927, the Subordinate Judge allowed the objections of the decree-holder his order concluding with the following words:
The result is that the objections are allowed with costs. The objector in my view is quite within his right to enforce a proportionate amount of his charge in respect of the property in dispute.
3. As a question arises in this appeal as to what were the "objections" of the judgment-debtor which were accepted, we will note here immediately that the use of the plural word "objections" is clearly merely by inadvertence. What the learned Subordinate Judge really allowed, and the only objection which clearly was pressed before him, was the fifth objection which we have noted above. This is clear from the following passage in the same judgment:
Rai Bahadur Lala Chhote Lal objects and pleads that the village Khajuri should be sold subject to his mortgage of 6th February 1903.
4. It is manifest from this that the objection which Chhote Lal was pressing was that the decree-holder was not entitled to sell the property free from his (Chhote Lal's) encumbrance altogether, and not any objection that he was entitled to have his charge discharged before the property could be put to sale at all. From the judgment and decree of the learned Subordinate Judge an appeal was filed to the High Court, E.F.A. No. 291 of 1927 which was decided by Sulaiman, J. and Banerji, J., on 19th April 1928. A perusal of that judgment again makes it manifest that the only matter in contest, whatever may have been the grounds of appeal between the decree-holder appellant and the judgment-debtor respondent was whether the sale should take place free from encumbrance, so far as Chhote Lal's claim was concerned, or whether it should take place subject to Chhote Lal's encumbrance. Clearly no question was there pressed before the Court other than these two respective views. What the view of the High Court was is clearly manifest from the following quotations:
It is now in the execution department that Chhote Lal comes forward for the first time and says that he has paid off a large sum of money and has priority over the plaintiffs claim and that therefore the property should be sold subject to his claim. The learned Subordinate Judge has upheld the objections and the decree-holders have appealed.
5. And again towards the end of the judgment:
It therefore seems to us that unless Bansidhar in the former suit impugned the prior mortgage itself, the defendant was not called upon to appear and prove either the validity of the mortgage or the amount due on that mortgage. The relief claimed by the plaintiff in the suit amounted really to an invitation to Chhote Lal to prove the amounts which he had paid off on account of the prior mortgage, When the plaintiffs were not claiming a sale of the property free from encumbrances but only a sale subject to the previous charge, Chhote Lal was not bound to appear and prove the amount to which he was entitled. He could not be bound to prove the amount when it was never intended that the property would be sold free from encumbrances and when he had not given his consent to its being so sold.
6. Here again the inference is irresistible that the whole contest was on the one side and on the other as to whether Chhote Lal, having entered no defence beyond his written statement was debarred from now claiming that the sale could not take place except subject to his prior encumbrance.
7. On the matter returning to the Court of the Subordinate Judge, the decree-holder on 16th June 1928, applied for rule of, amongst others, the village Shajuri, subject to Chhote Lal's prior charge. On 7th July 1928, Chhote Lal again made objections. The first material 'objection urged before us is the second one which was based on a claim that the decree of the trial Court which had been upheld by the higher Court should be interpreted to mean that mauza Khajuri could not be sold at auction until the payment of the prior encumbrance of the objector: and the fifth objection which was that no proceedings towards sale were permissible until the actual amount of the prior encumbrance may be determined. The lower Court has dismissed these objections summarily on the same date with a brief order which we may quote in full:
Heard the parties. The matter has sufficiently been thrashed out in the judgment of the Honble High Court which has agreed with my view and is no longer open to controversy. As has been held already the property will be sold subject to the charge of the objector under the mortgage dated 6th February 1903. Proclamations will be issued accordingly.
8. From the quotations that we have made from the previous applications,, objections and judgments in the prior proceedings, it is, in our view, manifest that the view taken by the Subordinate Judge in the present proceeding is correct. The present objections were either not specifically taken when they could have been taken, or having been taken were rejected definitely by this Court In this view the appeal must fail.
9. There is, however, one further point which has been urged to us and which is taken in the grounds of appeal here but which could not be taken before the Subordinate Judge because at that stage' the sale proclamation had not been drawn up. The objections of the judgment-debtor Chhote Lal and the rejection of those objections, which we have held to have been rightly rejected, are of date 7th July 1928 and the sale proclamation was not drawn up till 10th July 1928 The sale proclamation directs that the sale should take place:
subject to the mortgage-deed dated 6th: February 1903 executed by Abdul Rahim in favour of Babu Ram and others on the basis of which a decree, No. 33 of 1915, has been passed.
10. It is contended that the sale should only be subject to the claim which Chhote Lal himself makes and that is only to a proportionate amount of the total amount of the decree which he paid off, that proportion being determined on the ratio of the value of mauza Khajuri to the value of the whole property mortgaged by the mortgage-deed of 6th February 1903. It is contended for the appellant and not challenged by the respondent, and there' is, further, material on the record to show, that the latter statement expresses correctly the claim made by Chhote Lal. As it was not possible for the judgment-debtor to make this objection to the Subordinate Judge on 7th July 1928 and the Subordinate Judge could not therefore deal with it, owing to the fact that the sale proclamation was not drawn up till three days later, it is not an objection which we can properly decide in this appeal. But the fact having been drawn to our attention it is at least desirable that this matter should be drawn to the attention of the Subordinate Judge with a view to his considering the propriety of an amendment and in the hope that it may avoid further litigation. The amendment that we have suggested to counsel for the appellant Chhote Lal and to which counsel for the respondent, the decree-holder, takes no objection in that the proclamation should be drafted so as to show that the prior encumbrance in favour of Chhote Lal is limited to a proportion of the total amount of the decree which he paid off based on the ratio of the value of mauza Khajuri to the value of the whole property mortgaged by the deed of 6th February 1903.
11. The last observation of ours as to the 'form the proclamation should take must not be interpreted as in any sense whatever a direction to the Subordinate Judge that he need not determine the pecuniary value of Chhote Lal's charge.
12. With these observations the appeal is accordingly dismissed with costs.