RAJAH GOBIND LAL ROY Vs. RAMJANAM MISSER

JUDGEMENT

(1.) IN June, 1886, mouzah Khurd Muradpore was sold for arrears of Government revenue. There was little or no competition; and the Appellant Gobind Lal Roy bought the mouzah at a price which is said to have been much below its real value. The Plaintiff's, claiming to be interested in the property as mortgagees of 8 annas, appealed to the Commissioner of Revenue against the sale. In their petition of appeal they alleged various grounds of objection, all of which are now admitted to be untenable. The appeal was rejected on the 23rd of October, 1886, when the sale became "final and conclusive" under Section 27 of Act XI. of 1859, and a certificate of title was issued to the purchaser. Then the Plaintiffs appealed to the Board of Revenue; but that appeal was declared incompetent. At last, on the 19th of October, 1887, just before the expiration of a full year from the date of the Commissioner's order, the Plaintiffs brought this suit to annul the sale and to enforce their mortgage.

(2.) THE High Court, as well as the Subordinate Judge, held the Plaintiffs entitled to relief. From that decision this appeal is brought.

(3.) AS regards the Plaintiffs' title to sue, the learned Counsel for the Appellant pointed out that the plaint on the face of it showed that the property on which the Plaintiffs claimed to have a charge had been sold before the date of the Government sale, under a decree obtained by a prior mortgagee against the mortgagor; and they insisted that such a sale has the effect of displacing puisne mortgagees and leaving them with nothing but a claim against the surplus proceeds, if any. That, however, in their Lordships' opinion, is not the necessary consequence of a sale under a decree obtained by a prior mortgagee against the mortgagor in a suit to which the puisne incumbrancers are not parties. In the present case the purchaser under the decree has never apparently disputed the right of the Plaintiffs as against the land. He was a party to a suit brought by the Plaintiffs to enforce their mortgage, which was pending at the date of the Government sale, it is clear from the terms of the decree made in that suit that the right of the Plaintiffs against the land would have been established but for the Government sale. He is a party to this suit; and all he claims here is the position of first mortgagee. The first ground of appeal therefore fails.