BAHADUR SINGH Vs. RAM PRASAD

JUDGEMENT

(1.) This is a judgment-debtors' appeal. The facts and circumstances which have given rise to this appeal are these: The appellants, Bahadur Singh and his son Durag Singh, were indebted to different persons and their ancestral zamindari property, for which they paid less than Rs. 250/- as land revenue, was burdened with three mortgages, -- one in favour of Gopal, the other in favour Bahadur Singh and Anr. vs. Ram Prasad (28.09.1951 -ALLHC) Page 2 of 4 gh and Anr. vs. Ram Prasad (28.09.1951 -ALLHC) Page 2 of 4 of Chunni and the third in favour of Ram Prasad, who is respondent in this appeal. The appellants also owed some money to Ganga Sahai, who obtained a simple money decree in respect thereof. In execution of that decree, the property mortgaged under the three mortgages aforesaid was attached and sold. It was purchased by Durag Singh appellant and the three mortgages were notified at the time of the sale. After the execution sale just mentioned, Gopal and Chunni also obtained decrees on the basis of their respective mortgages, and in execution of their decrees, self-liquidating mortgages were executed in respect of the mortgaged property. Then Ram Prasad, the respondent, also obtained a decree on the basis of his mortgage and put the decree in execution by sale of the mortgaged property. The execution of the decree was transferred to the Collector, under Section 68, Civil P. C, and under Rule 3 of the Rules framed by the Government, under Section 16, U. P. Debt Redemption Act, 1940. During the pendency of the execution proceedings in the Court of the Collector, the appellants filed an objection, purporting to be under Section 47, Civil P. C. In this objection, it was alleged by them that the execution of the decree had been transferred to the Collector; that they formed a Hindu joint family and paid less than Rs. 250/- as land revenue; and, that under new law (evidently the reference was to the U. P. Debt Redemption Act, 1940) the mortgaged property was not liable to sale, although it could be transferred by means of a self-liquidating mortgage.

(2.) The learned Civil Judge of Aligarh, before whom the objection was filed, entertained it and proceeded to dispose it of. He recorded a finding that Durag Singh, by virtue of the sale in his favour, became owner of the property and as he had admittedly purchased only the equity of redemption, the property was not "protected" in the hands of Durag Singh, who was only a subsequent purchaser subject to the mortgages. Accordingly, he dismissed the objection. Against the order dismissing the objection, the present appeal has been filed by the appellants.

(3.) Learned counsel for the appellants has challenged the finding of the trial Judge to the effect that Durag Singh had become the owner of the property and that it was liable to sale. On behalf of the respondent, it has, however, been contended that the Court below had no jurisdiction to entertain the objection, as the objection being in substance for obtaining relief under Section 17, Debt Redemption Act, it should have been filed before the Collector.