BABU SHEO PARGAS SINGH Vs. NAWAB SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit brought for the redemption of certain property mortgaged on the 2nd of June. 1856. Pour persons mortgaged their property under this document. The property now in dispute is the one-sixth share which belonged to Bachu Lal Singh. The four mortgagors were Raghunandan, Jhumak Singh, Bachu Lal Singh and Padam Nath Saran Singh. The mortgagees were Jeo Lal Singh and Subh Dayal Singh. The mortgagees transferred their rights to Jhumak Singh and Padam Nath Saran Singh on the 15 December 1869. After that Ambica, son of Jhumak Singh, and Pad am Nath. Saran Singh mortgaged certain property to the defendants Nos. 1 to 11 in this suit including among the mortgaged property their mortgagee rights in the share of Bachu Lal Singh. The defendants Nos. 1 to 11 brought two suits for sale on the basis of their mortgages in the year 1897. At that time, Bachu Lal Singh was dead and his widow Lakhraji Kanwar, was made a party to the suits as having an interest in the mortgaged property. At the date of those suits, her interest was equity of redemption under the mortgage of the 2 June, 1866, as the widow of the original mortgagor. She was not indebted in any way to the defendants Nos. 1 to 11 under the mortgages in their favour. By their suit they asked for decrees, for sale in respect of the mortgagee rights of Ambica and Padan Nath Saran Singh in the share of Bachu Lal Singh. As against Lakhraji and her interest they sought for no relief and this was distinctly stated by their pleader in the course of the suit. Judgment was passed in their favour ordering the payment to them of sums due on their mortgages and in default ordering the sale of the mortgaged property, that is, so far as we are concerned in this case, the sale of the mortgagee rights held by Ambica and Padam Nath Saran Singh. The decrees drawn up on the basis of the judgment in the two suits were drawn in a very unsatisfactory manner. On behalf of the respondents, it is urged that those decrees were decrees for the sale of the full proprietary rights in the share of Bachu Lal Singh. On behalf of the appellants it is urged that the decrees are merely decrees for the sale of "the mortgagee rights of Jhumak Singh and Padam Nath Saran Singh. Reading those decrees, however, as a whole and taking into consideration the fact that in the details of, the property ordered to be sold the property submortgaged in those villages is distinctly mentioned, there can be no doubt that the true interpretation of the decrees is that they were for the sale of the mortgagee rights so far as the particular property in dispute is concerned. THIS interpretation is consistent with the judgment and in the case of an ambiguity if it is possible to read the decree consistently with the judgment, this should be done. In execution of those decrees the respondents purchased the property sold. The sale certificate, dated the 20th March 1933, shows that what was sold in auction appears to be comprehensive enough to include the proprietary title of Bachu Lal Singh in the share now in dispute, that is to say, it appears to indicate that certain property was sold in execution of the decree which has in no way ordered its sale. The assignees of the heirs of Bachu Lal Singh have now brought the suit for redemption and the respondents defendants have met them with a plea that; the equity of redemption no longer exists in them, the plaintiffs, but in the defendant, it having been extinguished by the auction sale, which took place in execution of the decrees in 1897. The answer to this plea was that the sale passed no title to the defendants not being warranted by the decree. The reply to this was that that was a point which could only have been raised by the plaintiffs predecessor-in-title under Section 244 of the Civil P. C., 1882, and not having been so raised, the plaintiffs are barred from raising it in the present suit. The Court of first instance decreed the claim. The lower appellate Court reversed the decision holding that Section 244 is a bar preventing the plaintiff from going behind the auction sale of 1897. On appeal to this Court it is urged that Section 244 of the Civil P. C. does not apply to the present case and the lower appellate Court misconstrued the decrees of the 22 February, 1897. We have already dealt with the true interpretation of the decrees in question. There remains the question as to Section 244 of the Civil P. C. 1882. In our opinion that Section is no bar whatsoever to the relief now claimed by the present plaintiffs. The decrees that were passed were not decrees against the widow of Bachu Lal Singh in any way. As was held in the case of Kalka Prasad V/s. Basant Ram 23 A. 346, Section 244 of the Civil P. C., 1882, presupposes a decree- enforceable by the decree-holder against a person between whom and the decree- holder the question referred to had arisen. It has no application to a question arising between the decree-holder and the person against whom there is no decree to be executed. The widow of Bachu Lal Singh was purely a formal party in the previous suit. No relief was asked against her and no decree whatsaever was passed against her and the property she represented. Therefore, under the ruling mentioned above, Section 244 of the Civil P. C., 1882, has no application to the question which arose between "her and the decree-holder that is the question which has now arisen, namely, whether her interest had been improperly sold or not by the decree-holder. In this view, the plaintiffs are entitled to redeem.

(2.) AT the conclusion of the judgment, we are asked to consider the first ground entered in the memorandum of appeal to the lower appellate Court, It appears that in the Court of first instance a plea practically of no substance was raised that Bachu Lal Singh was a member of the joint undivided Hindu family with Jhumak Singh and Padam Nath Saran Singh. No issue was framed on this point and from the statement made by the respondents pleader in that Court, it appears sufficiently clear that the point was not present in that Court. The mortgage deed of the 2 June, 1866 itself, the facts that the shares were separately redeemed and the fact that Jhumak Singh mortgaged his rights as mortgagee of that very share, all go to show that there is no substance whatsoever in this plea. We do not deem it necessary to remit any issue for a finding on this point. The result is that we set aside the decree of the lower appellate Court and reinstate that of the Court of first instance with costs including in this Court fees on the higher scale.