LEELACHAND WALCHAND GUJAR Vs. VISHNU GANESH LAKADE

JUDGEMENT

(1.) THIS is an appeal against an order passed by the Assistant Judge of Satara in Civil Appeal No. 193 of 1939 confirming the decree of the Subordinate Judge of Vita in Civil Suit No. 214 of 1937. The appellants in this case were the original defendants, and the suit against them was filed by one Ekanath Bala Lakade under somewhat peculiar circumstances.

(2.) THE property involved in this litigation is revision Survey Nos. 204 and 277 of the village of Chitali in Khanapur Taluka of Satara District. THE survey numbers originally belonged to one Maruti Lingu and his nephew Dnyanoba, Maruti Lingu having three-fourths share and Dnyanoba having one-fourth share in the two revision survey numbers. THE property had been mortgaged in the year 1864 by Maruti Lingu and Dnyanoba's father Aba to one Chimappa Mahajan for Rs. 1,700. During the pendency of this mortgage, Dnyanoba sold his one fourth share in one of the revision survey numbers, viz. No. 277, to one Aba Nana on May 7, 1917, for Rs. 400 THEreafter Maruti Lingu and Aba Nana filed a suit No. 270 of 1920, for redemption against one Gangaram Anna and other heirs of the original mortgagee Chimappa Mahajan and obtained a decree thereon on July 24, 1922. THE decree was under Section 15-B of the Dekkhan Agriculturists' Relief Act by which the mortgagors were directed to take possession of the property and were also ordered to pay the decretal debt in instalments. THEre was the further order that on failure of the mortgagors to pay certain instalments, the mortgagees were entitled to bring a sufficient part of the mortgaged property to sale. THEreafter on May 27, 1927, Maruti Lingu sold his three-fourths share in the mortgaged properties to Ekanath Bala for Rs. 3,450, and Ekanath, thereupon, obtained possession of those properties. In the meantime, one Bhaulal Gujar filed two suits, Nos. 177 and 178 of 1926, against the heirs of the mortgagee Gangaram Mahajan for monies which were due to him and obtained money-decrees thereon. He also obtained attachment of the mortgagee decree-holder's right in the Civil Suit No. 270 of 1920. THEreafter he filed darkhast No. 224 of 1928 to execute the decree in Suit No. 270 of 1920. During the pendency of the darkhast, Maruti Lingu, one of the judgment-debtors, died. His heirs were not brought on record and the darkhast proceeded against the other judgment-debtor Aba Nana only. In execution of that darkhast, the two revision survey numbers were sold; revision survey No. 277 was purchased by defendant No. 1, and he obtained possession thereof in December, 1930. Revision Survey No. 204 was purchased by defendant No. 2 and he obtained possession thereof in January, 1931. When Ekanath, the vendee from Maruti Lingu, found that he was dispossessed of the two survey1 numbers he filed an application under Order XXI, Rule 100, for being restored to possession. That application was filed on January 13, 1931, and was later converted into an application under Section 47 of the Civil Procedure Code, on July 22, 1933. Later on this application was again converted into a suit under the directions of the lower appellate Court on September 29, 1933, when the Court-fee was paid, and the suit proceeded. THE prayer of Ekanath in the suit was that the Court should deliver possession of the property in dispute to him from the defendant auction-purchasers after holding that the possession which the defendants obtained in execution of the decree in Suit No. 270 of 1920 was wrongful.

(3.) THE principal point urged by Mr. Gajendragadkar for the defendants-appellants is that the sale in favour of the defendant auction-purchasers conferred a valid title upon them even though in the darkhast in the course of which the auction sale was held, Maruti Lingu's heirs were not brought on record. His contention was that the decree was a joint decree in so far as it conferred on both Maruti Lingu and Aba, the mortgagors, the right to redeem the property, and that even if Maruti Lingu's name was deleted, his interests were sufficiently represented by his co-judgment-debtor Aba Nana. He further urged that the omission to bring Maruti Lingu's heirs on record was merely an irregularity and did not make the sale void but only voidable, and as the plaintiff's heirs had not brought the suit within one year of their being dispossessed, the suit was barred under Article 12 of the Indian Limitation Act.