MAHADEO PRASAD Vs. ANANDI LAL

JUDGEMENT

(1.) The question of law which is raised in this appeal is whether a charge which does not amount to a mortgage can be enforced against a transferee for value without notice of the charge. The Court below, relying on the decision in Maina v. Bachchi (1906) 28 All. 655 has held that it can. The appellant contests this proposition. The plaintiff-respondent supports it, but in addition contends that on the finding of fact of the Court below the question does not really arise. He relies also on the fact that the appellant's title was acquired at9 execution sale and not by private conveyance.

(2.) The property in dispute consists of a m half share in three houses Nos. 29, 45 and 66, situated in the city of Allahabad. The m plaintiff, Anandi Lai, was at the institution of the suit the holder of a decree for Rs. 704-9-0 against first defendant, Sham Lal, and seeks to enforce by the sale of these houses. The houses originally belonged to the plaintiff and his cousin, Kalyan Chand, in equal shares. One Sheo Nath obtained a decree against Kalyan Chand and attached his half share in the houses before judgment on 5 February, 1918.

(3.) The suit was finally decreed on 13 June, 1918 on the basis of a compromise which provided that the amount decreed in favour of Shoo Nath should constitute a charge on the property already under attachment. As an additional precaution the decree was registered. The rights of the decree-holder were purchased by the plaintiff Anandi Lal, who proceeded to put the decree in execution. The houses were put up to sale and purchased by one Badri Prasad, but the sale was set aside on the application of Sham Lal, and the plaintiff has in consequence brought the present suit to establish his right to have the half share in the houses attached and sold under his decree.