IMPORTANT POINT
The findings of the Executing Court and the High Court that the decree holders, who are respondents herein, are entitled to recover possession of the entire suit land i.e. 1906 kanals and 19 marlas suffer from no legal infirmity and the Courts rightly rejected the objections raised by the appellants against execution of decree.

Headnote:Civil Procedure Code, 1908-Order 34 Rule 8 r/ws 151 and Order 21, Rule 11, Sections 47, 115-Suit for foreclosure of mortgaged property-Preliminary decree passed-Final decree also passed-Executions-1st execution satisfied a part-2nd execution was filed for-Remainder-Objections-Dismissed by executing court-Confirmed in revision by High Court-Appeal against to Supreme Court-Plea that preliminary decree did not cover the land of Karam Singh or his share-Neither taken at the time of preliminary decree nor in appeal or revision-Whether can be permitted in appeal under Article 136 of Constitution? No-Appeal dismissed.
Held : Though in the order passed on the petition filed under Order 34 Rule 8 read with Section 151 of the CPC to make the decree final the fact that Sarbans Singh was declared an insolvent person in the proceeding under the Provincial Insolvency Act was noted, no plea that the preliminary decree did not cover the land of Karam Singh or his share in the suit land appears to have been taken. In the facts and circumstances, the Executing Court rightly rejected the objections raised by the appellants against execution of the decree. The High Court was, therefore, justified in declining to interfere with the order of the Executing Court. In the result the appeal being devoid of merit is dismissed. There will, however, be no order for cost. (Paras 14 and 15)

JUDGMENT

D.P. Mohapatra, J.-Leave granted in SLP (Civil) No. 3444 of 2000.

2. These appeals are inter-linked with each other. The result in the appeal arising from SLP (Civil) No. 3444 of 2000 depends on the decision in Civil Appeal No. 5845 of 1994. For the sake of convenience we will first deal with Civil Appeal No. 5845 of 1994.

3. This appeal filed by some of the judgment-debtors is directed against the judgment dated 20.7.1993 passed by the High Court of Punjab and Haryana dismissing the Revision Petition, C.R.No. 2092 of 1988 filed by the appellants and confirming the order of the Senior Subordinate Judge, Gurdaspur dated 6.8.1988. In the said order the objections filed by the appellants under Section 47 of the Code of Civil Procedure were dismissed and warrant of possession was ordered to be issued.

4. The predecessors in interest of respondent No. 1 filed suit No. 493/62 against Karam Singh and six others, in the Court of the learned Senior Subordinate Judge, Gurdaspur for redemption of land measuring 1906 kanals 19 marlas which were originally mortgaged for Rs. 10000/- by Sarbans Singh and his father Ishar Singh (deceased) by a registered mortgage deed dated 23.4.1925. The details of the mortgaged land were given in Appendix I to the plaint. The following reliefs were sought in the plaint:

"The plaintiffs pray that a decree for redemption of land measuring 1906 kls. 19 mls. Originally mortgaged by Sarbans Singh and Ishar Singh for Rs.10,000/- by mortgage deed dated 23.4.1925 regarding the land situated in village Talabpur Tehsil and Distt. Gurdaspur and as detailed in appendix I attached to the plaint already without payment of any further charge be passed in plaintiff s favour and the plaintiffs be also given possession by redemption of 100/217 share from out of land in appendix II(h) measuring 293 kls. 19 mls. Attached to the plaint already as detailed in the heading of the plaint para (b) from out of land in Appendix II(h) and also decree for possession of 67 kls. 12 mls. of land killas No. 6/24 & 25, 15/1 & 10 and 16/3/2, 4, 5, 6, 7, 8/1 be passed without payment of any further charge as the decree is dated 25.1.1960 and 4.6.1962 on the basis of which the possession was obtained by defendants 1, 2 and 3 was passed on the basis of mortgage deed dated 23.4.1925 which stands redeemed and a decree have become ineffective as against the rights of the plaintiffs. The plaintiffs be also given a decree for permanent injunction as a consequential relief restraining defendants : 1 to 3 from interfering in anyway in the land covered by the above decrees or mortgage deed. The plaintiffs be given costs of the suit as well. They may also be given such further or other release to which they may be for legally as well equitably entitled to."

5. The suit was contested by defendants 1 and 2 Gonda Singh and Gurdayal Singh the predecessors in interest of respondents 3 to 9. Karam Singh defendant No. 4 who is the predecessor in interest of the appellants filed a written statement but did not contest the suit. The learned Senior Subordinate Judge, Gurdaspur by judgment dated 30.11.1963 decreed the suit preliminarily. The operative portion of the judgment reads as follows :

"In view of the above discussion and finding on issues 1 and 2, the plaintiffs must pay the sum of Rs. 29676/- to the defendants 1 and 2 before they can get the land in suit redeemed. They are not entitled to the decree for a declaration prayed for nor they can recover possession of 100/217th share of the land detailed in clause B of the heading of the plaint, without getting it redeemed along with the other area. Hence, I grant the plaintiffs a preliminary decree for possession by redemption of the land in suit on payment of Rs. 29676/- to the mortgagee defendants 1 and 2 and the rest of the suit is dismissed.

The plaintiffs are allowed three months time to deposit the aforesaid amount for payment to defendants 1 and 2, failing which the defendants will be entitled to appl

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