RAM NARAIN Vs. SALIG RAM

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession of a house. The house in dispute belonged to Govind and Pitam. They mortgaged it with the plaintiff-appellant on 27-7-1928. The mortgage was simple. The plaintiff-appellant brought a suit in 1940 for sale of the house, on the basis of the simple mortgage. In due course, there was an order for sale and the sale was held on 17-5-1944 and was confirmed on 18-7-1944. The plaintiff himself was the auction purchaser.

(2.) It appears that the mortgagors were indebted to a co-operative bank. The bank realised the money due to them by sale of the house in suit This sale took place in 1941 during the pendency of the mortgage suit. The sale was under the provisions of the Land. Revenue Act because the amount due to the co-operative bank is realisable as land revenue. The defendants were the purchasers at this revenue sale. The plaintiff, could not get possession over the house under his purchase as the defendants had come into possession thereof. The defendants were not made parties in the mortgage suit. The plaintiff, therefore, filed the present suit claiming possession over the house. The lower appellate Court dismissed the suit on the ground that the sale held by the revenue authorities resulting in the purchase by the defendants was a sale free from all charges including that in favour of the plaintiff under the mortgage of 27-7-1928.

(3.) In this second appeal by the plaintiff two points have been raised--one is whether the plaintiff's mortgage had been wiped off by reason of the revenue sale in favour of the defendants, and the second is whether the plaintiff was entitled to possession of the house as against the defendants or whether he should sue the defendants for sale of the property.