CHIMNA SADASHIV Vs. RAM DAYAL PRAYAGDAS

JUDGEMENT

(1.) THE present plaintiff claims to be the holder of a mortgage for Rs. 3,000 and interest upon certain property which has passed to the 5th defendant, the respondent, on a sale in execution of a decree. In the execution proceedings under that decree the present plaintiff intervened and asserted his claim as a mortgagee and prayed that the auction-sale should be held after reserving the mortgage lien of the amount of Rs. 3,580 with future interest, and that the said sum should be awarded to the plaintiff. THE executing Court ordered notices to issue to the opponents, namely the plaintiff and the defendant in the suit in which the execution proceedings had been instituted, and on the returnable date of the notices the order was made that " the mortgage is admitted, I grant the application with all costs on the opponents." That, we think, was clearly an order under Section 282 of the Civil Procedure Code of 1882, and it was an order against both the opponents, and therefore the plaintiff (the present respondent and defendant 5) was bound if he wished to challenge the order to institute a suit to establish the right that he claimed within the year prescribed by the Limitation Act. That suit was not instituted. THE property was sold and in the proclamation it was stated to be subject to mortgage liens to the extent of upwards of Rs. 9,000, and it is not contended that that sum did not include the mortgage alleged by the present plaintiff. THE present respondent was a purchaser through the Court and remained in possession of the property for some years. THEn the plaintiff took steps to assert the alleged mortgage which was operative, as he said, not only against the property held by the present respondent but against the property held by defendants 2 to 4 in this suit, and they set up that the mortgage was fraudulent. THE lower appellate Court has allowed the present respondent to set up the same defence, and it has been held in the lower Courts that the mortgage was fraudulent. THE plaintiff-appellant contends that the order under Section 382 was conclusive, not having been set aside in a suit filed within a year from its date. It appears to us that Section 283 can only contemplate a suit based upon facts known to the party against whom an order was passed under Section 282 within a year from the date of the order. If he was aware of the fraudulent nature of the mortgage, it was part of the cause of action he would have to allege in such a suit filed within a year; if, however, he was not aware of the fraud, and became aware of it afterwards, he could under Section 44 of the Evidence Act assert the fraudulent nature of the plaintiff s application and the consequent invalidity of the order passed upon it in any proceeding instituted by the plaintiff on the strength of such order. THE question, therefore, we must have decided in this case before we can deal with it in appeal is whether the defendant 5 was aware of the fraudulent nature of the plaintiff s mortgage transaction within a year of the date of the order of the 6th of March 1897. We remand the case to the lower appellate Court for a finding upon that issue. THE finding to be returned within three months. THE onus of proof will be upon the 5th defendant.