KISHEN LAL Vs. PEARE LAL

JUDGEMENT

(1.) This is a Letters Patent appeal against a judgment of a learned single Judge of this Court, who dismissed the plaintiff-appellant's suit and thereby restored the decree of the first Court.

(2.) It appears that the respondent Pearey Lal held a mortgage, made in his favour, on 12 of May, 1904, by two persons Mahbub Ali and Shahzadi Begum. These judgment-debtors mortgaged certain specified shares as their property with Pearey Lal. In due course Pearey Lal brought his suit for sale, and to that suit he made parties not only the judgment-debtors themselves but also their representatives, among whom were included the present plaintiff's father Gauga Sahai, who was impleaded on the ground that he had purchased a portion of the mortgaged property. At some stage of the suit Ganga Sahai died, and in his place the appellant's name was substituted as a party. The decree that was passed was in respect of "5 sihams with the exception of the property mortgaged under the deed of 6 of February, 1904, and sold in decree No. 157 Sultan Begam."

(3.) After obtaining a final decree for sale Pearey Lal proceeded to bring the property to sale. In doing so, he described the property ordered to be sold in specific areas. It has been found by the lower Appellate Court that the area which Pearey Lal was entitled to sell was really 40 bighas and odd and by a calculation, which went entirely in favour of Pearey Lal, would not exceed 85 bighas, in any case. Pearey Lal, as a matter of fact, described the property ordered to be sold by the decree as covering an area of 118 bighas. With this description, however, which, it appears was unchallenged on behalf of Kishen Lal the appellant, the property was brought to sale and was purchased by Pearey Lal himself.