MAHADEO SARAN SAHU Vs. THAKUR PROSAD SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for adjudication of title by auction-purchase and recovery of possession of a share of 2 annas 8 pies in Revenue-paying Estate known as Khaira Pahari in the Oollectorate of Mozaffarpur. It appears that a separate account had been opened in. the Oollectorate in respect of this share. The plaintiff alleges that one Babu Lal Sahu, who is the father and ancestor of the defendants 3 party, borrowed Rs. 2,300 odd from the plaintiff's predecessor-in-interest and executed a mortgage bond on 3 houses situated in the district of Chupra on the 7 Jane 1889. The plaintiff obtained a mortgage-decree on the 10th September 1895.

(2.) In execution, the whole of the mortgaged property was sold for about Rs. 775 and for the balanse plaintiff obtained a personal decree under Section 90 of the Transfer of Property Act. This decree was transferred for execution to the Mozaffarpur Court where the plaintiff obtained the attachment of the property in dispute on the 10 September 1897. The notice of attachment was served on the 10 November 1897. After attachment one Sagaram, ancestor of the defendants 2nd party, filed a claim alleging that he was a purchaser under a deed of sale dated the 25 July 1894. On the 5 March. 1898, bis claim was allowed.

(3.) On the 12 September 1898, the plaintiff instituted a suit under Section 283 of the former Civil P. C. for a declaration that Sagaram's sale-deed was spurious and the property should be made liable to attachment in execution of the plaintiff's decree. The plaintiff got a decree on the 22 September, 1899. An Appeal No. 398 of 1899 was preferred to the High Court by Sagaram but did not come on for hearing for 4 years and was dismissed on the 10 December 1903. In the meantime between the preferring of the appeal and its decision, Babu Lal's heirs made default in the payment of the Government Revenue for the June hist of 1901 which became an arrear on the 28 September. 1901. The estate was sold on the 3 January 1902 and purchased by the contesting defendants 1 party who obtained a sale certificate on the 22 April, 1902. In execution of his decree the plaintiff purchased the property on the 23 March 1905 and obtained delivery of possession on the 4 August 1905. He then applied for mutation of names in the Collectorate. The defendants 1 party objected and the Deputy Collector disallowed the objection on the 25 January 1906. The defendants 1 party appealed to the Collector who allowed their appeal and upheld their objection on the 9 March 1906. Thereupon the defendants 1 party dispossessed the plaintiffs on the 29th March 1906. The plaintiff sues on the allegation that as the defendants 1 party's purchase was made at the time the appeal of Sagaram was pending and the plaintiff was actively defending the appeal, the defendants first party's purchase is barred by the doctrine of lis pendens.