JHUM LAL Vs. SHAM NARAYAN SINGH

JUDGEMENT

(1.) The principal defendants held a decree for sale of a property and the suit out of which this appeal arises was brought to declare that that property in the hands of the plaintiffs could not be sold in execution. The history of the case is set forth in the judgment of the 1 Court, but it will be best to repeat the salient features as there have been successive dealings with fractional shares and confusion requires to be avoided.

(2.) There was a two anna share in village Karmoopur, Tauzi No. 3605/19, of which the proprietor was Mt. Uma Kuer. She executed a mortgage deed hypothecating the entire 2 annas share to one Dasrath on 15 January 1899. Thereafter she sold to the predecessor of the defendants first party one anna share on 9 July 1903. I shall refer to this as the first one anna share. There remained in Uma Kuer's hand the second one anna share. Dasrath sued on his mortgage in 1907 and obtained a mortgage decree on 16 September 1910. In the meantime the properties in the hands of Uma fell into arrears of road-cess and two sales of fractions in it were held on the 15 December 1908 and 5 April 1910 respectively.

(3.) By these sales taken together 7 gandas 2 kowris out of the second one anna share were brought in the name of Abilakh, who was actually a farzidar of one Jadunandan. After the decree of Dasrath, Uma Kuer on the 31 May 1912 sold the second one anna share to Udai Narain, son of Paltan, ignoring the sales in execution certificates for arrears of cess. In 1917 Dasrath put up the entire 2 annas share to sale in execution of his mortgage decree. The property was actually sold and the sale was set aside by the deposit of the entire decretal amount which was made by the predecessor of the defendants first party. These defendants first party brought a suit in 1918 to recover the money paid in 1917 to redeem the prior mortgage of Dasrath.