MAHIMUDDIN Vs. PANU SAHANI

JUDGEMENT

(1.) These seven misc. appeals are against the orders in Misc cases Nos. 30, 65, 33, 34, 32, 64 and 31 respectively. Since all these misc. cases and appeals arise in the coarse of the execution of the same decree and involve a common question of law, they have been heard analogously both in the lower Court and here. They arise in the following circumstances, One Sk. Bhikari obtained a preliminary mortgage decree on 6 7-1936, which was made final on 25-11-39 against certain Sahanis on foot of a simple mortgage dated 22- 7-22. The mortgage is said to have comprised 21 lots covering an aggregate extent of 16.20 acres and the amount due under the mortgage decree by the date of the present execution filed in 1946 was near about Rs. 10,030. The decree-holder assigned the decree to the common appellant in all these appeals by a registered-deed, and it is the assignee that is now executing the decree. In the course of this execution, these seven applicants intervened by petitions under Order 21, Rule 53 and Section 47, Civil P. C. claiming that some out of the plots comprised in the mortgage decree should be exempted from the execution sale proceedings that were then pending. All of them were either purchasers or transferees from purchasers of specific plots in execution of certain rentdecrees obtained by the respective landlords of the holdings within which 'those plots were situated. (For convenience, they will hereinafter be referred to only as purchasers). We have been informed that these seven petitions relate to six out of the 21 lots under the mortgage and comprise a total extent of about 11 acres. The common contention of all these applicants is that since they have purchased the respective plots under rent sales, and in realisation of a statutory first charge for arrears of rent, the plots purchased by them are not bound by the mortgage-decree, that therefore they take it free of any claim under the mortgage of 1922 on the basis of which the decree under execution was obtained.

(2.) It has been found that four oat of these seven applicants had applied after their purchases, for annulment of the encumbrance of 1922 under Section 211 of the O. T. Act. Under that section, the application for annulment to be made within one year of the date of sale or date of knowledge of the existence of the encumbrance. The learned Judge held two out of the applications as being within time and two as beyond time. Thus in respect of Miac. Cases Nos. 33 and 64 which are under appeal as M. A. Section 5 and 8 respectively, the learned Judge held that the properties comprised therein are completely exempt from any claim under the mortgage or under the mortgage-decree. As regards the other two applications, which are Misc. cases Nos. 30 and 31, and which give rise to M. A. Section 3 and 9 respectively, the learned Judge held that the annulment applications were beyond time. In respect of these two misc. cases, as well as in respect of Misc. cases Nos. 65 34 and 32 from which arise Misc. Appeals Nos. 4, 6 and 7 in which no applications for annulment were at all made, the learned Judge, treating all the five as on the same footing, has held that the non-annulment of the encumbrance under Section 221 of the O. T. Act neither give any priority to the mortgage-decree nor had the effect of rendering the mortgage-decree binding against them. He held that the result of nonannulment was only that those applicants lost the benefit of escaping entirely from the burden of the mortgage on which the mortgage-decree was based, and that the rights between the mortgage decree-holder and the rent-decreoauction- purchasers have to be worked out in a separate and properly constituted suit. In this view, he held that the applicants in all these seven misc. applications were entitled to remain in possession and that the sale proceedings in execution of the mortgage-decree could not be continued as against any of them. It is against these orders that the present appeals have been brought by the assignee-decree holder.

(3.) So far a Misc. Appeals Nos. 5 and 8 arising out of Misc. cases Nos. 33 and 64 are concerned, learned counsel for the appellant fairly conceded that he cannot sustain the appeals, since it has been found that the applicants therein had made annulment applications under Section 221 of the O. T. Act in time and since so far as they are concerned, the encumbrance, having been annulled, must be treated as non-existent. The mortgage-decree is, therefore, of no avail aa against those properties.