BHAIRON RATAN Vs. MAGANMAL

JUDGEMENT

(1.) THIS is an appeal by Bhairon Ratan defendant against the judgment and decree of the District Judge of Bikaner decreeing the suit brought by Maganmal, plaintiff-respondent, against the defendant-appellant.

(2.) THE case of the plaintiff was briefly this. One Radhakishan obtained a money decree against Harikishan in 1950. That decree was put in execution and the plaintiff purchase a house belonging to Harikishan in auction sale on the 6th of April 1953. THE sale was confirmed on the 7th of May 1953 and certificate of sale was issued in favour of the plaintiff. THE plaintiff got possession of part of the house before he filed the present suit and we are told that he is now in possession of the entire house, Bhairon Ratan is the brother-in-law of Harikishan. He brought a suit on the 30th of May 1953 against Harikishan on the basis of an equitable mortgage. To that suit Maganmal was not made a party,even though the house had already been purchased by him and a sale certificate had been issued in his favour on the 15th of May 1953. This suit was decreed on compromise on the 31st of July 1953. THEreafter Bhairon Ratan put the decree in execution by sale of the house. When this happened Maganmal came to know of this decree. He thereupon filed the present suit on the 18th of December 1953. His case was that the so called equitable mortgage on the basis of which Bhairon Ratan had obtained his decree was a sham transaction between two near relations. He also said that as he had purchased the house before Bhairon Ratan brought his suit and as he was not made a party to Bhairon Ratan's suit, the decree obtained by Bhairon Ratan against Harikishan could not be executed against him after he had obtained possession of the property. He further said that he did not based his claim on the allegation that the equitable mortgage was a shaw transaction; he based it only on the ground that as he had not been made party to the suit by Bhairon Ratan, the decree obtained by Bhairon Ratan against Harikishan could not be executed against him. Consequently no issue was framed by the trial court on the question whether the equitable mortgage was sham transaction. THE two main issues which arose on the case put forward by the plaintiff were these: - (1) Was the plaintiff an auction-purchaser of the suit property a necessary party in civil suit No. 15 of 1953 of this Court in which the decree in question was passed? P. (2) If so, is the consent decree passed on 31. 7. 1953 in that suit void and ineffective as against the plaintiff and the house in question is not liable to sale in execution of that decree?