DURGA PRASAD Vs. GANGA DEI

JUDGEMENT

(1.) This is a execution second appeal. The appellant is the decree-holder. A final mortgage decree was passed in favour of the decree-holder on the 13th August 1938. One of the Judgment-debtors under the decree was Srimati Kalawati. On the 12th September 1938 an execution application was made. On account of Act X of 1937 the execution was stayed, It was, however, revived. The mortgaged property was sold and purchased by the decree-holder at auction. An objection under Order 21 Rule 90 of the Civil Procedure Code was filed by the judgment-debtors which was dismissed on the 2nd August 1941 whereafter the sale was confirmed on 11th of August 1941 and the execution case was struck off in part satisfaction. Subsequently on 18th of September 1944 a sale certificate was granted to the decree-holder purchaser. Thereafter on the 30th of November 1944 the decree-holder acution-purchaser applied for possession over the property purchased by him at auction sale.

(2.) Srimati Ganga Dei and Srimati Tarawati are the heirs of Smt. Kalawati who had died during the pendency of the execution application. They were not brought on the record of the execution application. Srimati Ganga Dei offered resistance to the delivery of possession. Her claim was investigated and it was held by the execution court that the one-third share of Srimati Kalawati was not affected by the auction sale in favour of the decree-holder because of the failure to implead her 'heirs after her death.

(3.) Thereupon the decree-holder filed an application praying that the auction sale should be set aside and that the sold property should be resold again. To that application all the judgment-debtors including .Srimati Ganga Dei and Srimati Tarawati, heirs of Srimati Kalawati were implead-ed. That application was rejected on the 10th of September 1945. An appeal was preferred and during (the course of the appeal a compromise was arrived at between the decree-holder auction-purchaser and all the judgment-debtors including the impleaded legal representatives of Srimati Kalawati. The compromise was in the following terms: