K VENKATARATNAM PATRO Vs. FATIMA BIBI

JUDGEMENT

(1.) The facts involved in this dispute are not In controversy. The plaintiff, Fatima Bibi obtained a decree for partition in O. S. 445 of 35 on the file of the District Munsif, Aska and sought delivery of possession in execution of the partition decree. Item 'H' is a house which had been mortgaged by the plaintiff's brother, Usman, to Sital Prasad, the husband of defendant No. I by a mortgage dated 3111- 1925. Sital Prasad filed a suit in O. S. 625 of 1935 to enforce his mortgage and a final decree in that suit was passed on 25-11-1938. Item 'H' was put to sale subsequently, and purchased by the mortgagee on 5-4-1941 and delivered to him through Court on 6-3-1942. It is admitted, that neither was the mortgagee a party to the partition decree obtained by the plaintiff, nor was the plaintiff made a party in the subsequent mortgage suit filed by Sital Prasad. When the plaintiff, went to take delivery of possession of the house she was resisted by Sital Prasad. Defendant No. 5 is said to be a subsequent purchaser from Sital Prasad and is the only contesting defendant. The executing court upheld the title of the auction purchaser and referred the plaintiff to work out her remedy in a civil suit. Accordingly the present suit was filed under Order 21, Rule 103, Civil P. C.

(2.) Both the Courts below have found that there was no collusion or fraud in obtaining the partition decree -- between Usman and his sister (the plaintiff). The only question therefore, is whether the title of the plaintiff should prevail over that of the mortgagee-auction purchaser & his alienee. The principle of law applicable to this case is laid down by the Privy Council in -- 'Mohammad Afzal Khan v. Abdul Rahman', AIR 1932 PC 235 (A) where their Lordships have observed as follows:

(3.) I am, therefore, in agreement with the view taken by the Courts below who have awarded a decree to the plaintiff for possession.