THAKUR PRASAD Vs. KANHYA LAL BHARGAVA

JUDGEMENT

(1.) Abinash Chandra was the sole plaintiff in a suit for sale on the basis of a mortgage deed. Under a compromise between the parties a preliminary decree for sale was passed on 13 September 1918. Abinash Chandra died some time about 1923 and his sons were substituted in his place as his heirs. They on one occasion applied for the preparation of the final decree, but , their application was dismissed for de-fault. Subsequently they transferred their rights to Kanhya Lal who filed a fresh application for the preparation of the final decree on 6 January 1926 against the mortgagors, Sita Ram and others. There was no objection taken and a final decree was passed on 1 July 1926 in favour of Kanhya Lal and against Sita Ram and others. It was after the passing of this final decree that the present appellant Thakur Prasad in execution of a simple money decree against the mortgagors got their supposed interest put up for sale, and he purchased it in 1927.

(2.) When Kanhya Lal applied for execution of the decree on 2 April, 1929, objections were filed on behalf of Thakur Prasad, but they wore dismissed on 17 December 1929. On a fresh application for execution fresh objections were filed on 11 February 1930 in which it was expressly asserted that Abinash Chandra had died and his heirs had not been brought on the record within three months of his death, and the suit had accordingly abated and the final decree passed was a nullity. On 22 February, 1930, the execution Court dismissed the objection, holding that Thakur Prasad had no loons standi to raise this point under Section 47, Civil P. C, in the execution department.

(3.) On a fresh application for execution, Thakur Prasad has again raised the same objection which has been dismissed by the learned Subordinate Judge on the ground that the present objection in view of the previous orders is not now entertainable. The learned advocate for the objector contends that the question of the exact time of the death of Abinash Chandra should be gone into inasmuch as if he had died more than three months before any application for substitution of names was made, the suit had abated and the decree passed in that suit was a nullity.