SAYAR BAI Vs. YASHODA BAI

JUDGEMENT

(1.) The question which arises for determination in this appeal is that as to when a larger interest in immovable property than possessed by the transferor is sought to be transferred by him whether the transfer would not be affected by the principle of lis pendens or such a transferee would still be a re-presentativein- interest of the judgment-debtor, in execution of the decree passed against the predecessor-in-interest of the transferor.

(2.) The facts which have given rise to these proceedings are that Shri Kishan mortgaged with possession the property in dispute with Chaganlal, Paras Ram and Mool Chand. Gordhanlal, Pannalal and Shankar Lal had claim for money against Mool Chand and they obtained a money decree against Moolchand with the stipulation that the decretal amount shall be realised from the property of Moolchand. The mortgagee rights in the disputed property were attached in execution of the decree obtained by Gordhanlal and others and were sold at an auction sale. Gordhanlal. Pannalal and Shankarlal decree-holders purchased the mortgagee rights of Moolchand in the aforesaid property and a sale certificate was issued in favour of the auction-purchasers. On November 27, 1943, Gordhanlal and others, who had purchased the mortgagee rights in the disputed property were put into possession of the said property. Pannalal and Shankerlal, auction purchasers, subsequently sold the mortgagee rights by an oral sale on November 19, 1945 to Sohanlal who is the son of Chhaganlal. A sale-deed in respect of the aforesaid transfer was subsequently executed on April 6, 1950, and the same was duly registered and thereby the mortgagee rights in the disputed property were transferred to Sohanlal. After" the death of Sohanlal, his sons Damodar and Naresh Chandra, sold the entire property in dispute to Hiralal on August 21, 1957 by executing a sale deed in his favour. Sayar Bai appellant is the widow of Hira Lal.

(3.) One fact which requires specific mention here is that Shri Kishan mortgagor filed a suit on May 31, 1941 for redemption of mortgage against Pannalal and his brother Moolchand. That suit lingered on for several years and ultimately a decree for redemption of mortgage was passed on April 27, 1972, which was confirmed on appeal by this Court on September 22, 1977. Thereafter, the trial Court passed a final decree for redemption on September 22, 1978. When the decree for redemption was sought to be executed by the plaintiff decree-holder the same was resisted by Hiralal, who set up the case that he was the purchaser of all rights in the entire property, by means of a registered sale- deed dt. August 21, 1957 from Damodar and Nareshchandra and that he was in possession of the disputed property in his own right and not on behalf of the judg-ment-deblor. The objections were raised under Order 21 Rule 97 C. P. C. but the executing Court rejected the objections by its order dated September 25, 1981. An appeal preferred by Sayar Bai, widow of Hiralal who had expired by then, was dismissed by the District Judge, Udaipur by his order dated December 1, 1981. Hence this second appeal has been filed by Sayar Bai.