PRITAM CHAND KIRPA MALL Vs. RULDA MAINGAL JAT

JUDGEMENT

(1.) Kapur Chand father of Amar Nath and Kidar Nath, defendants Nos. 1 and 2, obtained an expert decree against Rulda defendant No. 3 on 28-12-1950, in execution of which the decree-holder got attached the land in dispute. On 2-1-1953, a compromise was effected between the parties stating that the ex parte decree may be set aside and the suit be entered at a new number and a decree for a sum of Rs. 3,086/- with costs be passed in favour of the plaintiff against the defendant. If, however, the defendant pays a sum of Rs. 1,700/- in all up to 1-5-1953, then the entire decree should be deemed to be satisfied. In accordance with the terms of the compromise a decree was immediately passed for a sum of Rs. 3,086/- with costs. No fresh attachment was, however, effected after passing of the fresh decree. On 26-2-1953, Rulda defendant No. 3, judgment-debtor, executed an agreement in favour of the present plaintiff's mortgaging the land in suit and some other land for a sum of Rs. 5,500/- the mortgage deed was executed later on 9-5-1953. Kapur Chand died and his sons Amar Nath and Kidar Nath defendants Nos. 1 and 2 attempted to recover the decretal amount by sale of the land in suit. A petition under Order XXI, Rule 58, Code of Civil Procedure, was thereupon presented by the present plaintiff's claiming that the land should be sold subject to their mortgagee rights. This objection petition was first dismissed on 10-71954, it was again presented but was again dismissed on 9-10-1954 for want of prosecution. The plaintiff's thereupon instituted the present suit for a declaration that the land could not be sold without the mortgage in their favour remaining intact. It was also claimed that defendant No. 3 had taken possession of the land two months before the institution of the suit and on this allegation possession of the land was also sought. During the pendency of the suit defendant No. 3 further mortgaged a part of the land in question in favour of defendants Nos. 4 and 5. They have thus also been made parties as defendants. The suit has been contested on various grounds including the bar of Order II, Rule 2, Code of Civil Procedure, and the bar of limitation. The plea under Order II, Rule 2, Code of Civil Procedure, is based on the assertion that a previous suit against Amar Singh defendant No. 5 regarding a part of the land had also been filed by the plaintiff's. Some of the defendants have completely denied the existence of the alleged mortgage and have pleaded that it was wholly without consideration; its validity has also been denied on the ground that it took place during the pendency of the consolidation proceedings; it has further been averred that the mortgage had been effected to defeat the rights of defendants Nos. 1 and 2 and that Karm Singh was a necessary party to the suit.

(2.) On the pleadings, the following issues were framed for trial: Is the suit barred under Order II, Rule 2, Civil Procedure Code? Is the suit barred by limitation? Is the land in suit mortgaged with the plaintiff's? If so, for what amount? Is the alleged mortgage in favour of the plaintiff's void? Whether the alleged mortgage was effected to defect the rights of defendants Nos. 1 and 2? Whether Karm Singh is a necessary party? Relief. What is the effect of the mortgage in favour of defendants Nos. 4 and 5 made during the pendency of the suit?

(3.) The trial Court negatived issue No. 1 holding the suit not to be barred. On issue No. 2, the suit was held to be within limitation, having been filed on 8-101955 within one year from the dismissal of the objections dated 9-10-1954. The trial Court under this issue also observed that according to Order XXI, Rule 55, Code of Civil Procedure, when a decree is set aside the attachment is deemed to be withdrawn, with the result that in the present case it was not necessary for the plaintiff's to file any objection petition. Under issue No. 3, it was found that the mortgage of the suit land in favour of the plaintiff's had been established and they had a right to get possession of the land in question. The Court was also of the view that it was unnecessary to ascertain the amount of consideration which passed between the parties, as passing of consideration is only to be determined on redemption. In spite of this observation, however, the trial Court held that the suit had been mortgaged for Rs. 5,500/- Under issue No. 4, the mortgage was held to be valid because there was not proof that the mortgage had been effected during the pendency of the consolidation proceedings. The consolidation proceedings were held to be over by the time the mortgage was effected and there was also no proof that permission of the consolidation officer had not been taken for effecting the mortgage. Under issue No. 5, it was held that there was no proof of the mortgage having been effected to defeat the rights of defendants Nos. 1 and 2. Karm Singh was also held to be an unnecessary party and issue No. 6 was decided against the defendants. The mortgage in favour of defendants Nos. 4 and 5 was, however, held to be void as against the plaintiff's; Issue No. 8 was thus decided in their favour. As a result of these findings, the trial Court granted a decree for declaration and possession in favour of the plaintiff's, as claimed.