SHANKAR VENKATESH KARGUPPI Vs. SADASHIV MAHADJI KULKARNI

JUDGEMENT

(1.) This is an appeal arising out of certain execution proceedings under the following circumstances :-Certain properties were mortgaged by Venkatesh and others to Vithalrao in 1886. They were mortgaged again to Rao Bahadur Huchrao in 1887 by the same mortgagors. In 1892 Vithalrao obtained a decree on an award on his mortgage against the mortgagors to which decree Huchrao was not a party, and subsequently in the same year he assigned his rights to the Kanbargikars, who are now represented by the present plaintiff (decree-holder). In 1896 the Kanbargikars obtained a fresh decree against the mortgagors for the mortgage-debt of 1886 and for other debts, which the mortgagors owed to them, in respect of the lands mortgaged in 1886 and some other lands. This also was a decree on an award and Huchrao was not a party to it. In 1895 R- B. Huchrao got a decree against the mortgagors on his second mortgage directing the sale of the mortgaged property subject to the first mortgage of 1886 in favour of Vithalrao. The first mortgagee and his assigns were not joined as parties to this suit by Huchrao. In execution of his decree Huchrao, with the permission of the Court, himself purchased the property subject to the first mortgage of 1886, at a Court- sale in or after 1898. Huchrao sold his rights as auction-purchaser to the Karguppikars in 1911.

(2.) The decree-holder applied in 1908 to execute the decree obtained on an award in 1896 against the mortgagors, and to bring to sale all the properties- including the properties, which were mortgaged to Vithalrao in 1886 and again to Huchrao in 1887. The application was made in, the first instance against the mortgagors or their legal representatives. Subsequently on the decree-holder s application Huchrao and the Karguppikars were joined as defendants Nos. 7, 8 and 9 respectively in the present execution proceedings.

(3.) The facts as stated above are admitted by both the parties. In the lower Court several issues were raised. But the controversy in this appeal is confined to issues Nos. 11 and 14. The lower Court held that Huchrao and the Karguppikars were necessary parties to these proceedings, and that they were bound by the decree under execution though they were not parties to it. In the appeal, which has been preferred by defendants 8 and 9 (the Karguppikars) against the order made by the lower Court on the basis of the above findings, the correctness of the findings on both the issues is questioned.