MT AMIRAN Vs. MTKANIZ AISHA

JUDGEMENT

(1.) One Fasihunnissa sued on the foot of a mortgage for sale of property which had been mortgaged to her assignor. The mortgagor being dead his heirs were made defendants in the suit. One of the heirs, a son of the mortgagor, was the husband of the plaintiff. After the decree had been passed the decree-holder died leaving her husband, her father and two minor daughters. The interest of the decree-holder's father in the decree was transferred to his nephew by a deed. The application for execution of the mortgage decree was made on behalf of two minor daughters of the deceased decree-holder. Neither the decree-holder's husband nor her father was a party to this application.

(2.) At the execution sale the mortgaged property was purchased on behalf of the two minor daughters and the sale was in due course confirmed. Two of the judgment-debtors then applied to set aside the auction-sale. An application to set aside the sale was also made by the transferee of the interest of the decree-holder's father. Both the applications were rejected by the executing Court and the decision of that Court was upheld in appeal by the District Judge. Misc. Appeal No. 332/33 arises out of the application by the two judgment-debtors and Misc. Appeal No. 290/33 arises out of the application by the transferee from the decree-holder's father.

(3.) A preliminary objection was taken by the learned advocate for the respondent on the hearing of both these appeals. With regard to Misc. Appeal No. 332/33, the learned advocate for the respondent contends that as the application in which this appeal arises was an application under Order 21, Rule 90, and as an appeal has already been heard and disposed of by the District Judge, no second appeal lies to this Court. The learned advocate for the appellant however argues that his application was not only under Rule 90, but was also an application under Section 47, Civil P.C.