F E CHRESTIEN Vs. JAIDEO PRASAD RAI

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge, Second Court, Mongbyr, setting aside an execution sale. The suit to which the execution relates was brought in 1921 for the recovery of a loan by enforcing a mortgage bond of 1907. A preliminary mortgage decree was obtained in 1922 and the final decree in 1923. The first execution was taken out in 1925 and in the course of it the mortgagor-judgment-debtor was, on account of his death, replaced by his son Tikait Basuki Prasad Singh. The present execution was taken out in 1928, within three years of the previous execution, by F.E. Chrestien, executor of the mortgagee-decree-holder, and now the appellant.

(2.) There were three parties defendants in the suit. The first party was the late Tikait, who was replaced in the previous execution by his son Tikait Basuki Prasad Singh. Defendants second party were subsequent encumbrancers and numbered 75 or more including one or more families of Rais, Babhans by caste, besides several Kayasthas, Brahmins, Rajputs and other castes. The third party of defendants consisted of subsequent purchasers of portions of the mortgaged properties. We are now concerned with Jaideo Rai, defendant and judgment- debtor No. 28, who was one of the defendants second-party; be made the application which has been allowed by the lower Court, and is the respondent in this appeal.

(3.) According to the prayer in the execution petition the lower Court issued notices under Order 21, Rule 22. On account of the large number of judgment- debtors, some difficulty was experienced in serving notices on some of them, but when the lower Court was satisfied that all the judgment-debtors had been served with the notices, the decree-holder (using this term to include his executor, the appellant) took out notices under Order 21, Rule 66 for settling the sale proclamations. After the service of these notices, sale proclamations were issued, and then an objection was preferred by Tikait Basuki Prasad Singh under Section 47, Civil P.C. After protracted proceedings this objection, which (among other things) urged that the mortgaged properties--Taluka Chakai and one-third share in Mahal Chandwari--were not saleable as they were Government ghatwalis, that the decree was not binding on the present Tikait, and that the valuation given in the sale proclamations was inadequate, was dismissed in September 1930.