LAKHU MOTIRAM Vs. RADHABAI MULCHAND RAMNARAYAN

JUDGEMENT

(1.) THE facts of the suit, from which this appeal arises, are briefly these. One Lalji Gokul executed a mortgage deed on 9-9-1914, mortgaging S. No. 49 Pot No. 3 and Falni No. 1 and S. No. 61, Pot. No. 2 and Falni Nos. 1, 2 and 3 of the village of Khadepi in Mahad taluka and some other lands to Bam Narayan, the father of the defendant's husband. At that time pot numbers were given to paddy lands and falni numbers to varkas lands growing grass. On 18-5-1925, Lalji Gokul sold some of the mortgaged properties as well as S. No. 49, pot Nos. 1 and 2 and S. No. 61 Pot No. 1, which were not covered by the mortgage in favour of Ram Narayan, to Lakhu Motiram, plaintiff 1, and Ranchhod Mathur, whoso heirs are plaintiffs 2, 3 and 4. In 1925 Ram Narayan filed a suit against Lalji Gokul in order to recover the amount duo to him. Plaintiff 1 and Ranchhod Mathur were made parties to the suit as subsequent purchasers of some of the mortgaged properties. In January 1927 a decree was passed in that suit directing that the mortgage amount should be recovered by the sale of the mortgaged properties. The decree mentioned the same lands as were mentioned in the mortgage-deed. Thereafter the lands were re-surveyed. The pot and falni numbers were abolished and pot hissa numbers were given to the portions of survey numbers. In 1931 Ram Narayan filed a darkhast for recovering the amount due to him by sale of the mortgaged properties. He included therein S. No. 49 and S. No. 61, Pot-hissa No. 1. The new S. No. 49 was made up of old pot Nos. 1 to 3 and Falni Nos. 1 and 2, while the new S. No. 61/1 consisted of old pot Nos. 1 and 2, Falni No. 2 and part of Falni No. 3. Out of these Pot Nos. 1 and 2 of S. No. 49 and Pot No. 1 of S. No. 61 were not included in the mortgage-deed. The lands, for the sale of which Ram Narayan had made an application, therefore, included some lands, which were not covered by the mortgage-deed or the decree obtained by Ram Narayan. These lands were mentioned in the proclamation of sale without any objection from the plaintiffs and were subsequently sold. Ram Narayan died during the pendency of the execution proceedings and his son Mulchand, the husband of the present defendant, and his widow Jamnabai were, brought on record as his legal representatives. The lands were purchased by Mulchand and a certificate of sale was issued to him on 11-3-1942. On 27-5-1942, the auction purchaser, Mulchand, obtained possession of the properties. Over four years later on 1-10-1946, the plaintiffs filed the present suit against the defendant, as heir of Mulchand, who had died in the meantime. They alleged in the plaint that portions of S. No. 49 and S. No. 61/1 were not covered by the mortgage-deed or by the mortgage-decree obtained by Ram Narayan, that they had been wrongly sold in execution of that decree and that the auction purchaser had acquired no title to them by his purchase at the court-sale. The plaintiffs, therefore, prayed for possession of these pieces of lands being awarded to them. The defendant contended that the suit was barred under Section 47, Civil P. 0. This contention was not accepted by the trial Court. That Court held that the plaintiffs had proved their title to the suit lands by the sale-deed executed in their favour by Lalji Gokul in 1925, that the sale of these lands at the court-sale was not legally valid and that the auction purchaser had acquired no interest in them, as he was not entitled to get any more property than what was ordered to be sold by the mortgage-decree. The trial Court, therefore, passed a decree directing the defendant to hand over possession of the suit lands to the plaintiffs. The plaintiffs appealed. The learned District Judge, who heard the appeal, came to the conclusion that the suit was barred under Section 47, Civil P. C. He, therefore, reversed the decree passed by the trial Court and dismissed the plaintiff's suit with costs throughout. Against his decision, the plaintiffs have come in second appeal.

(2.) THE plaintiffs in this suit seek to recover possession of the properties sold at a court-sale from their purchaser. Such a suit cannot lie, until the sale has been set aside, unless the sale could be considered to be a nullity, see Nagabhatta v. Nagappa, 46 Bom. 914. It has been urged that as the mortgage decree obtained by Ram Narayan directed the sale of the mortgaged properties only, the executing Court had no jurisdiction to sell the suit properties, which were not included in the mortgage, and that consequently the sale of these properties was a nullity. The properties were described in the mortgage-deed and in the decree by reference to their pot and falni numbers. These pot and falni Nos. were abolished before Ram Narayan filed the darkhast for executing the decree. The executing Court had, therefore, to determine what properties were covered by the decree by reference to their new survey and pot-hissa numbers. In furnishing the new description of the mortgaged properties, the decree-holder Ram Narayan evidently by mistake, included the suit properties also. The original mortgagor Lalji Gokul or the plaintiffs, who had purchased Lalji Gokul's interest in the properties did not object to the new description of the mortgaged properties given by Ram Narayan. The Court, therefore, ordered their sale, acting evidently on the assumption that these properties were also included in the decree. It is, therefore, in our opinion, difficult to hold that the sale of these properties was a nullity. In Nagabhatta v. Nagappa a property not covered by the mortgage was through mistake of the mortgagor himself included in the decree and sold in execution of that decree. In a suit brought by the plaintiff for recovering possession of that property, it was held that its sale was not a nullity. In his judgment Maeleod C. J. relied on the following observations of the Privy Council in Malkarjan v. Narhari, 25 Bom. 337

(3.) IN this case the decree-holder in his application for execution described the mortgaged properties by reference to their new survey numbers and pot-hissa numbers. No objection to this description was taken by the plaintiffs or the original mortgagor. The executing Court was, therefore, entitled to come to the conclusion that the description given by the decree-holder in the darkhast application was correct and that all the properties mentioned therein were liable to sale. In ordering their sale, the Court cannot, therefore, be said to have acted without jurisdiction, for it had jurisdiction to decide what properties were liable to sale. In our opinion, therefore, the sale in this case was not a nullity. It was a case of a material irregularity in publishing and conducting the sale. The remedy of the plaintiffs was, therefore, to apply under Order 21, Rule 90, Civil P. C. , for setting aside the sale. Sub-rule (1) of Rule 92 provides that where no application is made for setting aside the sale, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. Sub-rule (3) of this rule provides that no suit to set aside an order made under this rule shall be brought by any person against whom such an order is made.