SHANTI PARSHAD Vs. KUNJ LAL

JUDGEMENT

(1.) This is an appeal by the Plaintiffs against the decree of the District Judge Narnaul dismissing their suit for possession and recovery of Rs. 2053/12/0 on 10-3-1977, one Mithlesh Behari mortgaged 44 bighas 3 biswas of agricultural land situate in Narnaul to Badri Parsad and Prabhu Dial for Rs. 8215/-. The mortgagees having died, their successors including the Plaintiffs further mortgaged their mortgagee rights in that land to Qabul Chand for Rs. 7,000/- on 21-4-1987. The Plaintiffs were then minors and the alienation on their behalf was made by their natural, guardians. The subsequent mortgagee let out the land on 'Chakota' to his mortgagors who therefore continued to be in possession. He had to sue them from time to time for recovery of the rent due from them and succeeded in obtaining decrees in several suits from the Revenue Courts. The Plaintiffs were parties to all those suits and were represented by their guardians-ad-litem. Between the years 1990 and 1996 Bk. he had obtained five such decrees for various amounts and in execution thereof he had got attached and sold certain properties belonging to the judgment-debtors. The Plaintiffs had 1/4th share in those properties.

(2.) The Plaintiffs brought the present suit for possession of their 1/4th share in the properties sold in execution of the decrees of the revenue Courts for arrears of rent due to Qabul Chand and for Rs. 2053/12/- which was their 1/4th of 8215/- which Qabul Chand had realised in execution of his decree dated 23-9-1997. The suit was based on the allegation that in the suits instituted by Qabul Ohand in the civil and revenue courts no guardian-ad-litem of the Plaintiffs had been got appointed' by him from the Courts and that those persons who had represented them had been extremely remiss in the defence of those suits. Those decrees were, therefore, described as having been obtained by fraud. The defendants resisted the suit on all the grounds taken up by the Plaintiffs categorically. The trial Court framed the following two issues:

(3.) So far as issue No. 2 goes, it must be decided against the Plaintiffs. It has been mentioned above that the Plaintiffs had instituted a suit for avoiding the mortgage dated 21-4-1987 and had failed in that suit. They were also parties to the suit instituted by Qabul Chand on 5-12-1995 to recover the mortgage money due to him from his mortgagors. That suit had been decreed on 7-7-1997. Those two decrees are still subsisting and they have not been attacked in the present suit. The statement, of the Mukhtiar of the Plaintiffs, makes it clear that no steps had been taken by them to get those decrees declared void or ineffective against them. As those decrees subsist, they have to be regarded to be perfectly valid against the Plaintiffs and the decree-holder could get the benefit granted to him by those decrees irrespective of the fact that the Plaintiffs against whom they were passed were minor's at the time. The Plaintiffs could have challenged those decrees and have them set aside by alleging and proving fraud or slackness of their guardians but till that was done they could not avoid their effect and deprive their decree-holder of the rights acquired by him under those decrees. So long therefore as those two decrees stand, the Plaintiffs having been parties to both of them, cannot get out of them, and since Rs. 8,215/- were realised by Qabul Chand in execution of his decree dated 23-9-1997 which was against the Plaintiff's also they cannot now be heard to say that Qabul Chand had obtained that amount illegally. No part. of the amount recovered by Qabul Chand which included a claim against the Plaintiffs also and had been decreed by a Court of competent jurisdiction can, therefore, be held to be refundable to them. Their suit with regard to that amount has, in our view, been rightly dismissed by the trial Court.