CHAMPALAL Vs. YNABI KHAN

JUDGEMENT

(1.) This Appeal arises out of the proceedings instituted for removing the obstruction to the deliveryof possession of a house situated in Bangalore City. An application was filed under the provisions of Order 21 Rule 97 of the Code of Civil Procedure by the present appellant in the capacity of a purchaser of the said property in Court sale. Respondent No. 1 obstructed the delivery proceedings on the ground that he had purchased the said property from the original owner thereof and had also discharged the prior usufructuary mortgage of the said property in favour of one Adiramaiah Setty. He also got possession of the said property and was subrogated to his rights. Respondents 2 and 3 are the tenants of the said property under the first respondent. The respondents' contentions were upheld by the trial Court. In appeal by the present appellant, the learned Subordinate Judge, Bangalore, while dismissing the appeal ordered that he is entitled to resist the delivery proceedings till the amount of Rs. 7,000/- was paid to him. This amount was paid by the first respondent to discharge the mortgage debt of Adiramiah. This second appeal is, therefore, filed by the appellant challenging the orders and judgment of the Courts below.

(2.) A few facts and dates are relevant for a proper understanding of the case. One Rajmal Hasthimal obtained a money decree against one Jabbar. He got an order of attachment of the said property before judgment on 1-2-1950. The suit was decreed on 10-3-1950. In execution of the said decree, the appellant purchased the attached property on 13-3-1952 for a sum of Rs. 1,050/subject to prior encumbrances. The sale was confirmed on 20-1-1953. Exhibit D is the sale certificate. On the strength of this certificate, he applied for delivery of possession of the property in Misc. Case No. 67 of 1953. The respondents obstruction. This was the application which was dismissed by the trial Court and which dismissal was upheld by the Subordinate Judge.

(3.) The first respondent Nabi Khan purchased the said property from Jabbar, the judgment debtor of Hasthimal on 7-1-1952 prior to the Court auction of the said property in favour of the appellant as per Exhibit II for a sum of Rs. 20,500/-. He discharged the mortgage debt due to the first usufructuary mortgagee Adiramaiah by payment of Rs. 6,500/- towards to mortgage dues and Rs. 500/- towards the rent due to the said Adiramaiah Setty. This usufructuary mortgage of Adiramaiah Setty is dated 6-12-1947 and is evidenced by Exhibit I in the case.