RASH BEHARI SINGH Vs. JAIPERGASH PANDEY

JUDGEMENT

(1.) This is an appeal in an action in which the plaintiffs claimed an injunction to restrain the defendants from realising, to use the words of the prayer in the plaint, "the said decretal amount by the sale of the joint family property or by any other means." Shortly the facts were these. The brother of the plaintiff executed a mortgage in favour of the defendant for a three gandas share of the property of the joint family of which he was a member with the plaintiff. The plaintiff and the mortgagor were brothers. The mortgagor was made a party to this action and is defendant second party. It is important to notice (as it raises a very difficult point in the case) that the mortgagor defendant second party died whilst this appeal was pending in this Court.

(2.) The share which the deceased mortgaged was admittedly less than the share to which he would be entitled on partition of the joint family property, his share in those circumstances approximately being four gandas. The principal defendant, the mortgagee, obtained a decree against the deceased mortgagor. Another fact which is to be noted is that the mortgagor was, not the karta of the family, and in addition it has been found by the Courts below that there was no question of the mortgage being for family necessity. In short therefore we have a member of a joint Hindu family, governed by the Mitakshara, executing a mortgage of his share or part of his share of the joint family property. The learned Judge of the trial Court gave the plaintiff a decree restraining the principal defendant from selling the property in question in execution of the decree which he had obtained.

(3.) That decision was upheld by the learned District Judge. In appeal it is argued by the appellant that the action was not maintainable. It is contended that this decree which the principal defendant, the mortgagee, had obtained was a perfectly valid decree and that whatever rights the parties may have, no action lies to prevent the defendant appellant from executing the decree which he had rightly obtained, unless indeed that decree is set aside on the ground of fraud or for some other sufficient cause. It is a somewhat startling proposition to an English lawyer that a plaintiff could maintain an action to prevent a judgment-creditor from executing a decree properly obtained. But the matter is not susceptible of so easy a solution as that; we have to deal with the Mitakshara law.