ABDUL HASAN Vs. PARAM KIRTI SARAN

JUDGEMENT

(1.) IT has been rightly said that the real difficulty of the decree holder begins when he has obtained a decree. To this truism one may add another aphorism, viz. , that the travails of auction purchaser start when the sale is confirmed by the court. This second appeal illustrates the correctness of this statement.

(2.) SIR Mohd. Yakub was a prominent citizen of Moradabad. He had borrowed a certain sum of money from Sahu Param Kirti Saran respondent 1 and executed a mortgage deed to secure the said loan. The properties mortgaged were two houses which are in dispute in this second appeal. SIR Mohd. Yakub was unable to pay this debt and in consequence the mortgagee filed a suit on the basis of the mortgage and the suit was decreed. Feeling himself aggrieved by the decree SIR Mohd. Yakub preferred a first appeal before this court. He however, died sometime in the year 1943 and his heirs were brought on record who included among others Mujtaba Hasan father of respondents 2 to 5 and husband of respondent No. 6. Suffice it to say that the first appeal was dismissed and the decree for sale of the two houses in dispute became final. The suit property was auctioned in execution of the decree and was purchased by Abdul Hasan, appellant in this second appeal. The sale was duly confirmed by the court and a sale certificate was issued in favour of the appellant.

(3.) THE execution court allowed the objection of respondents 2 to 6 by its order dated October 13, 1964. It held that respondents 2 to 6 had a share apart from the share inherited by them as heirs of Sir Mohd. Yukub in the property in dispute, and the appellant was not entitled to obtain possession as regards that share. THE execution court directed that symbolical possession can be delivered to the appellant in so far as the share of Sir Mohd. Yakub was concerned. In doing so the executing court purported to act in accordance with the provisions of law contained in Rule 96 of Order XXI of the C. P. C.