BASHISHT NARAIN SINGH Vs. RAM PUKAR SINGH

JUDGEMENT

(1.) This is an appeal by the judgment-debtor, who is a subsequent transferee from the mortgagors, who is aggrieved by the concurrent decisions of the Courts below by which they overruled his objection to setting aside the sale.

(2.) The facts are these. The plaintiff obtained a preliminary mortgage decree on 26 February 1937 and on 19 September, of the same year, he having applied for the decree to be made final and after notices were served on all the parties, including the appellant (who as I have already stated was a subsequent transferee from the mortgagors) but without waiting for the decree being made final applied to execute his decree. Notices of this application were also served upon all the parties including the appellant. The sale in execution of the decree was held on 7th January 1939. The decree, however, had been made final in the meantime on 14th January 1938. On 7 May 1940, the appellant filed an application under Section 47, Civil P.C., challenging the validity of the entire execution proceedings which were started in 1937. The main objection was that the Court had proceeded to sell the property not in execution of a final decree which, as already observed, was passed after the application for execution had been made, but in execution of a preliminary decree. It was, therefore, argued that the Court had no jurisdiction to sell the property in execution of a preliminary decree and, therefore, the sale should be set aside. The Courts below, however, have concurrently come to the conclusion that as the decree in question was made absolute long before the sale there is no merit in favour of the appellant. Hence the second miscellaneous appeal to this Court.

(3.) A preliminary objection was raised that no appeal lies and reliance was placed upon the decision of this Court in Maula Bux V/s. Raghubar Ganjhu A.I.R. 1918 Pat. 297, but it is unnecessary to consider this question as I am of opinion, that the view taken by the Courts below is correct.