BHAGIRATH PRASAD KAMALIA Vs. SM JAMUNA DEVI

JUDGEMENT

(1.) This appeal arises out of an application for the execution of a decree for sale. The property sought to be sold is 3 annas 6 pies share in a house bearing holding no. 136 in Ward no. 2 in the Municipality of Gaya.

(2.) This house formerly belonged to one Gopalji who executed a mortgage bond in 1930 hypothecating this property. The mortgagee sued on the bond on 19th September 1936 (Suit No. 62 of 1936), and obtained a preliminary decree on 28th January 1938, The decree was made final on 4th August 1941. One Bajrang Sahay figures in the final decree as judgment-debtor no. 51. The respondents, who are transferees from the heirs of Bajrang Sahay, objected to the execution of the decree on the ground that Bajrang Sahay died on 21st May 1941 and that, as no substitution was made in his place, the decree cannot be executed against them. The objection has been sustained. Hence, the present appeal.

(3.) Before the Subordinate Judge there was a contest as to whether Bajrang Sahay died before the decree was made final. The correctness of the finding that he died has not been challenged before us. The only point pressed by Mr. Janak Kishore for the appellant is that Bajrang Sahay acquired his interest in the property during the pendency of the mortgage suit, that he was therefore not a necessary party in the mortgage suit and the failure to implead his legal representatives will not affect the executability of the decree, Mr. Raj Kishore Frasad resists this contention, asserting that Bajrang Sahay's interest in the property commenced before the institution of the suit. He also raises a preliminary point, that the opposite party being strangers to the decree their objection was not under Section 47 but under Order 21, Rule 58, Civil P. C., and so no appeal lies.