KESHO RAM Vs. CHUNNI SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal by the defendant Kesho Ram against a judgment of a learned single Judge of this Court upholding the decree of the lower appellate Court awarding possession of certain property to the plaintiff on certain conditions. The plaintiff had a simple money decree for Rs. 1,100 against Behari Singh dated 17 September 1925, and he applied on the same date for attachment of the property in execution. On 3 October 1925 his judgment- debtor Behari Singh executed a usufructuary mortgage of this property to defendant 1 Kesho Ram, the appellant before us. This mortgage purported to be for Rs. 1,000. On 19 December 1925 Kesho Ram made an objection to the execution of the decree of the plaintiff, claiming that the property had been mortgaged to him. On 16 January 1926, the objection was allowed in a proceeding from which the plaintiff was absent, and it was held by the execution Court that the property should be sold subject to the mortgage in favour of Kesho Ram. The sale took place four days later on 20 January 1926, and it has been taken by the lower appellate Court that that sale was made subject to the rights of Kesho Ram as mortgagee. The plaintiff decree-holder purchased the property himself subject to this mortgage of Kesho Ram. On 26 October 1926, the plaintiff brought the present suit contesting the validity of the mortgage by his judgment-debtor in favour of Kesho Ram.

(2.) It has been argued by counsel for the appellant Kesho Ram that the suit of the plaintiff would not come under Order 21, Rule 63, and that the plaintiff is precluded from bringing the present suit in the civil Court. The ground on which the plaintiff is precluded is not particularly clear, because there is no principle of the law of estoppel by which the plaintiff could be estopped. The purchase at the auction-sale by the plaintiff did not in any way prejudice the rights of the appellant as mortgagee. The ease for the appellant has however been argued on the strength of obiter dicta in certain rulings of this Court. We may note at once that there is a definite ruling on the point in favour of the plaintiff Shah Ziyauddin Abdul Hossein V/s. Kailash Chander [1905] 2 C.L.J. 599.

(3.) In that case it was laid down that a person who purchases property in execution of his own decree apparently subject to a mortgage lien as declared by the Court under Section 282, Civil P.C., without however acquiescing in the order made under Section 282, in favour of the mortgagee, is entitled to question the validity and bona fides of the mortgage within a year of the order in the claim case. It is true that in that case it was pleaded by way of defence, whereas in the present case a suit has been brought by the plaintiff, but we consider that there is no distinction in the circumstances. Now the cases relied on by the learned Counsel for the appellant are firstly Inayat Singh V/s. Izzatunnissa Begum [1904] 27 All. 97. That was a Pull Bench case in which it was held by a majority of two Judges to one that where there was a notification in the sale proclamation that there were two prior mortgages on the property sold, the decree-holder purchased at the auction-purchase only the equity of redemption of the mortgaged property and not the whole of the proprietary rights therein. This ruling however did not deal with the case of a decree-holder who claimed to bring a suit to contest the order in the execution department.