MUTSADDI LAL Vs. SULTAN

JUDGEMENT

(1.) This is an appeal by the decree-holder, Mutsaddi Lal, from an order passed by the Court below on an application made under 5. 144, Civil P.C. The facts of the case are somewhat complicated and admittedly there has been a tangle. Suit No. 30 of 1911 was first instituted on the basis of a mortgage-deed against the respondent, Sultan, who was then a minor, and a number of other defendants. An ex parte decree was obtained by the mortgagee which was put in execution and part of the mortgaged properties was sold at auction and purchased by the decree-holder himself. After this execution sale, Suit No. 211 of 1917 was filed by Sultan and three others for a declaration that the previous decree was not binding upon them inasmuch as they had not been properly represented. This litigation terminated in favour of Sultan, it being held that the previous decree was not binding upon him at all, but the previous decree was maintained as against his co- plaintiffs. The result therefore was that the previous decree and sale stood good as against the shares of all the defendants except Sultan, whereas they were null and void as against Sultan.

(2.) The decree-holder then applied that the previous mortgage suit should be revived as against Sultan. The suit was again fought out. Sultan pleaded that some of the items included in the mortgage money were not supported by legal necessity. The finding this time was that the total amount of the mortgage money was only Rs. 1,353 together with some costs and future interest. A preliminary decree was passed on 7 August 1918, against Sultan for the last mentioned amount and for the sale of the entire mortgaged property in case of non-payment. The list attached to this decree apparently gave the entire mortgaged property and not only the half share of Sultan. But later on a final decree was prepared on 19 July 1918 for the consolidated sum of Rs. 2405. This decree directed the sale of the half share in the mortgaged property. But the whole of the amount found due against Sultan was entered as the mortgage money. This decree became final and no appeal was preferred from it.

(3.) A third suit was then started by the decree-holder-purchaser, Mutsaddi Lal, for the possession of half of the estate belonging to the mortgagor other than Sultan because the decree-holder apparently had failed to obtain possession of the property purchased by him at auction. This suit came up to the High Court which decided on 27 May 1926 that the sale of the half shares of the defendants other than Sultan was perfectly good and that only the half share of Sultan had been released. The learned Judges clearly stated that in their opinion the decree obtained by Mutsaddi Lal was still in force and his purchase of one half of the property had never been set aside and they further held that the Court which decided the mortgage suit in 1918 had no jurisdiction to interfere with the previous sale of 1911 in respect of a portion of the property which was not in suit before it. Apparently the description of the property as given in the preliminary decree only was placed before the learned Judges and their attention was not drawn to the different descriptions in the final decree. Anyhow as between Mutsaddi Lal and Sultan it was definitely held by the final appellate Court that the previous sale of 1911 as regards the half of the property stood good and the Court had no jurisdiction in the subsequent mortgage suit to direct the sale of that property over again.