(SAHU) NAND KISHORE Vs. LDHANPAT RAI

JUDGEMENT

(1.) This is a decree-holder's appeal from an order passed by the execution Court allowing certain objections of the judgment-debtors. Under a mortgage of 1904 in favour of Bansidhar Kuar Sen and Jagannath 5 biswas shara in village Nawada had been sold in execution and purchased by Shadi Ram. Under another mortgage of the same date in favour of Cheddan Lal and others, another 5 biswas share was sold in execution of the mortgagees decree and purchased by Shadi Ram. Under the third and fourth mortgages of the same date in favour of Brijbasi Lal 20 biswas of Nawada were again sold at auction and purchased by Kure Mal This sale was subsequent to the two previous sales. Kure Mal sold 10 biswas to Shadi Earn, and after some years sold whatever rights he had left in the remaining 10 biswas to the sons of Shadi Ram.

(2.) Nand Kishore held a mortgage of 1910 on which he sued impleading Bansi Dhar and others, Chhedan Lal and others, Shadi Ram and others, but not impleading Brijbasi and Kunwar Sen. After the purchase made by Shadi Ram and before the disposal of the suit by the first Court Ganpat Rai died, and after his death neither the name of his nor after him that of his son's widow was brought on the record as his legal representative. In the suit of Nand Kishore Bansi Dhar and others as well as Cheddan Lal and others failed to prove their mortgages of 1904 which they had set up. The High Court by its decree declared that they have no priority as against Nand Kishore. Nand Kishore in execution of his decree applied for the sale of 10 biswas of Nawada. Objections were raised by the sons of Shadi Ram to the effect that they had acquired these 10 biswas in execution of the decree on the basis of the previous mortgage in favour of Brijbasi Lal which had priority as against Nand Kishore's mortgage. They also set up the prior mortgages in favour of Bansi Dhar and others and Cheddan Lal and others.

(3.) The decree-holder replied that this objection could not be raised in the execution department at all. The Court below has held that the objector can raise this objection under Section 47, Civil P.C. and has allowed this objection. Nand Kishore has accordingly appealed to this Court, inasmuch as the Court below has treated the objection before it as being one under Section 47, Civil P.C. An appeal lies to the High Court even if it were ultimately held that the proceedings were not properly started under that section.