RAM NARAIN SAHOO Vs. BANDI PERSHAD

JUDGEMENT

(1.) The facts of this case are a little complicated, but there is no doubt as to what they are, and the main question before us is whether upon the facts the appellant is entitled to possession of the land covered by the litigation by ejecting the respondent.

(2.) On December 3rd, 1887, the respondent obtained a Mortgage for Rs. 3,450 of a 5 annas. and odd gundas share of a village called LalWar. On November 18th, 1890, the same mortgagor. hypothecated a 4 annas out of the aforesaid 5 annas and odd gundas share of the property to the appellant. On March 7th, 1894, the respondent obtained a decree for sale on his mortgage but he omitted to make the appellant, the puisne mortgagee, a party to his suit It does not, however, appear that the respondent had notice of such encumbrance in favour of the appellant. On December 17th, 1897, the appellant instituted a suit on the mortgage to him making the respondent, the first mortgagee, a party The suit was commenced after the respondent had applied for sale under he decree for sale obtained by him. The respondent was himself the purchaser at the sale held at his instance. The sale was confirmed early in November 1898, and on November 14 the respondent was put in possession of the property. The appellant got a decree for sale on December 18th, 1898, caused a sale of the 4 annas mortgaged to him and became himself the purchaser long after the respondent had got into possession. After the confirmation of sale the appellant applied for possession, and was actually put into possession by ousting the respondent.

(3.) The respondent then applied to the Court executing the decree, i.e., the Subordinate Judge of Muzaffarpur, to be restored to possession, and on December 5th, 1903, the Court passed an order in his favour. The present appellant appealed to the District Judge of Muzaffarpur, but his appeal "was dismissed on the ground that none lay under the Code of Civil Procedure.