ABDUL AHAD Vs. BRIJ NARAIN RAI

JUDGEMENT

(1.) This is a judgment-debtor's appeal in an execution case. In order to understand the case it is necessary to keep in mind the following facts : Karam Ata and. Abdul Samad were brothers. Abdul Ahad, the mortgagor, is the son of Abdul Samad. Absanullah and Mt. Razia Bibi are the two children of Karam Ata. Sheikh Abdul Ahad executed three mortgage-deeds in favour of the respondents. They were executed in 1906, 1914 and 1922, respectively. On foot of these three mortgage deeds, three separate suits were instituted and mortgage decrees were obtained by the respondents against Abdul Ahad. Those decrees have been made final. The respondents decree-holders have applied for execution of their decrees against the appellant. The objection taken by the appellant in the Court of the learned Subordinate Judge was that the decree-holders were not entitled to proceed against the entire shares mentioned in the application for execution, but only against portions thereof. In order to understand this plea it will be necessary to relate some other facts which are as follows: On 27 April 1927, Mt. Razia Bibi and her daughter instituted a suit against Sheikh Abdul Ahad claiming a 5 annas 4 pies share in the estate which was at one time owned by Karam Ata and his brother Abdul Samad. It was alleged on behalf of Sheikh Abdul Ahad in that case that in 1886 there was a compromise under which he became the owner of the entire 16 anna share. On the other [hand the two ladies who sued him contended that Abdul Samad and after him Abdul Ahad were trustees in respect of the 5 anna 4 pies share which they claimed in the estate. In that suit the mortgagee was also made a party. The learned Subordinate Judge, who decided the case, decreed the claim of the two ladies. Against that decree there was an appeal to the High Court. This Court discharged the decree of the learned Subordinate Judge and in lieu thereof passed a decree under which it was ordered that the ladies named above would get possession over 5 anna 4 pie share if they paid into Court a sum of Ris. 56,000 within a period of six months from the date of the decree of this Court. It appears however that the two ladies were unable to pay this amount. After that Sheikh Abdul Ahad and the two ladies entered into a compromise under which instead of 5 anna 4 pie share the two ladies; got much less. The result was that the judgment-debtors got more than 10 anna 8 pie share.

(2.) When the respondents-mortgagees, applied for the execution of their decrees, the plea taken by the mortgagor-appellant was that the mortgages could proceed only against that share which, according to the finding of the Subordinate Judge in the suit referred to above, was owned by him. His plea was that the additional share which he possessed had become his in pursuance of the agreement which he had arrived at with the above-mentioned two ladies after the decree of the High Court and therefore the mortgagee could not proceed against that share. The learned Subordinate Judge in whose Court the application for execution was made repelled the contention and held that the mortgagor was estopped from taking any such plea and that the property which he had mortgaged was liable to be sold whether it was owned by the mortgagor at the time when he created the mortgage or whether it came to his possession subsequently. Against that decree the present appeal has been preferred.

(3.) The only question for our consideration is whether the decision of the learned Subordinate Judge on the point mentioned above is correct. We have heard the learned Counsel appearing for the appellant and after hearing him we are satisfied that there are no grounds for disturbing the order passed by the learned Subordinate Judge.