MAHOMED ISUB Vs. BASHOTAPPA BIN TAKAPPA

JUDGEMENT

(1.) In this case the plaintiff having in a previous suit obtained a decree against two brothers, now appellants, for possession under Section 9 of the Specific Relief Act, was resisted by a third brother, Ahmad Saheb, the original defendant in the present suit, and in accordance with Section 331 of the Civil P. C. (Act XIV of 1883) the claim was numbered and registered as a suit between the decree-holder as plaintiff and the obstructing claimant as defendant. The issues that properly arose in such a suit under the provisions of that section were whether the person obstructing was in possession on his own account or on account of some person other than the judgment-debtor; and no question of title between the plaintiff and his judgment-debtors requiring the decree against them to be re-opened could possibly be adjudicated upon in such a proceeding. The joinder of the judgment-debtors was admittedly an irregularity. But the lower Appellate Court abstained, or apparently intended to abstain, from consummating that irregularity by deciding on the title as between the decree-holder and the judgment-debtor.

(2.) We have been asked to remand, the case in order that that question of title might now be investigated, and referred to the case of Moulakhan V/s. Gorikhan (1890) 14 Bom. 627 beginning at page 627. But that was a case between a decree-holder and a parson resisting execution claiming under a title adverse to the judgment-debtors; and obviously the question of title, as between those parties, necessarily required decision in that case. We think it is equally obvious that the question of title between the judgment-debtors and the decree-holder cannot be gone into in this case arising in execution of the decree, as it would enable the judgment-debtors to re-open in execution a decree purporting to be in force against them, and this was certainly never contemplated in Section 331 or any other provisions of the Code, and would frustrate the provisions of Section 9 of the Specific Relief Act.

(3.) We think, however, that the District Judge's judgment is so far open to objection as it seams to suggest that the question of the title between the plaintiff and the present appellants, his judgment-debtors, was susceptible of discussion in this case, and ought to be decided against the judgment-debtors on the strength of the decree for bare possession. All passages in that judgment which could bear the construction that they decided on the question of title between the plaintiff and the judgment-debtors must be regarded as obiter dicta, as no issue on that point could arise in this case.