HIRALAL Vs. KHUBILAL

JUDGEMENT

(1.) THE following facts relating to the proceedings out of which this second appeal arises are material and they will be helpful in disposing of this appeal.

(2.) HUKAMCHAND brought a suit against Kishan Lal Khamesra in Samvat 1944 for redemption of a shop which was originally mortgaged by Nawal Chand Nehal Chand with one Swai Ram Samu Ram, who in turn sub-mortgaged it with HukamChand Sakhla and the latter mortgaged his mortgagee rights in the property with Kishan Lal Khamesra. Hukam Chand's suit was decreed in Samvat 1944 in the following terms by Mahendraj Sabha: - "That on payment of Rs. 410/ 10/3 by the appellant plaintiffs to the defendants-respondents, the latter shall deliver the suit property to the plaintiff". Subsequently, the decree-holder applied in court that since he was not in a position to pay the mortgage money, the amount may be ordered to be paid by instalments and he should be put in possession of the mortgage property. Attempts at a compromise having failed the court disposed of the proceedings in Samvat 1953 with the remark "that the case be dismissed in default." Then in Samvat 1972 the successor in interest of Nawal Chand Nehal Chand, said to be the original owners of the suit properly and its first mortgagors, redeemed the property privately from Kishm Lal Khamesra and took possession of it. In Samvat 2004 one Khubi Lal, on behalf of Hukam Chand, decree-holder, made an execution application on 7. 10. 1947, in the court of the City Munsiff, Udaipur. It was opposed by Nawal Chand Nehal Chand on the ground that he was in possession of the property, in dispute, and against whom the application could not be executed as he was not a party to the original suit and also for the reason that the execution application was time-barred. The Munsiff decided it in favour of Khubilal and that decision was, on appeal, upheld by the learned District Judge. Against this finding of the two courts below Nawal Chand Nehal Chand has come up in this second appeal.