ACHHAIBAR SINGH Vs. RAM SARUP SAHU

JUDGEMENT

(1.) Bisheshar Sahu, father of defendants Nos. 1 to 3, obtained a decree for sale on a mortgage of certain property On the 9th of October, 1890. Bhawani Din, the mortgagor, judgment-debtor, after the decree, sold his equity of redemption to the plaintiff and left Rs. 770 with him out of the consideration money to pay off the mortgage decree. Bisheshar Sahu died, leaving three sons, namely, Ram Sarup, Beni Madho and Chunni. Ram Sarup was an adult and the two younger brothers were minors. After two infructuous applications to execute the decree, the plaintiff paid off the amount of the mortgage to Ram Sarup, and Ram Sarup applied, under Section 258 of the old Civil Procedure Code, to have the satisfaction of the decree certified by the court, and this was done on the 31st of March, 1897.

(2.) Thirteen years afterwards Beni Madho and Chunni applied to execute the same decree by sale of the property. The plaintiff, who alone had any interest in the property, was not made a party to these proceedings.

(3.) One Somai Ahir was brought on the record as a legal representative of Bhawani Din, the mortgagor judgment-debtor. The court executing the decree found that Beni Madho and Chunni had made their application within three years of attaining majority, and ordered the property to be sold, and sent the papers to the Collector for compliance. When the sale notification was issued, the plaintiff first became aware of what had been done. He applied to the Collector, objecting to the sale on the ground that the decree had been already executed; his application, however, was dismissed, on the ground that he was no party to the decree. Hence this suit.