GOKHEI SWAIN Vs. CHAITAN RAUT

JUDGEMENT

(1.) This second appeal arises out of an order, dismissing an objection, taken by certain judgment-debtors to the execution of a mortgage-decree. The judgment- debtors admitted that the land, which had been sold, and certain buildings on it, had been mortgaged by them, but they asserted that there was another building or buildings on the land, which had not been mortgaged. This building or buildings had, however, been mentioned in the sale proclamation along with the other buildings, which were admittedly mortgaged, and had, therefore, been sold. The judgment-debtors contended that, by the sale, the title to this building or buildings did not pass to the mortgagee, and, in consequence, he was not entitled to be put in possession of them under the writ of delivery of possession which he had taken out.

(2.) The learned Munsif came to the conclusion that the property, which had been sold, was no more and no less than the property which had been mortgaged and dismissed the objection on the merits. On appeal, the learned District Judge expressed some doubt as to the correctness of the conclusion of the learned Munsif, but did not express any final opinion of his own as he considered that the objection was not maintainable and ought to have been dismissed in limine. The attention of the learned District Judge was, apparently, not drawn to certain decisions of their Lordships of the Judicial Committee, which are directly in point.

(3.) In Ramabhadra V/s. Kadiriyasami A.I.R. 1922 P.C. 252 the legal representatives of a certain mortgagor instituted a suit to recover possession of certain property, on the ground that it was not part of the property, which had been mortgaged and eventually sold in execution of a decree. The contention put forward on their behalf was precisely the same as that which is put forward here, namely, that, through some mistake or contrivance on the part of the mortgagee, the property, advertised to be sold in execution of the mortgage decree, had been more extensive than the property actually mortgaged. Their Lordships of the Judicial Committee, in dismissing the suit, observed that the mortgagee could and ought to have raised the contention, that was put forward in the suit in the proceedings in execution of the decree.