GIRIRAJ KANTA CHAKRABUTTY Vs. MOHIM CHANDRA ACHARJYA

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for possession of land and huts on declaration of title by purchase at a sale in execution of a mortgage-decree. The facts essential for the decision of the questions of law raised before us may be briefly stated. Three brothers A, B and C, were owners of the disputed property, and their interest may be regarded as the unit for our present purpose. On the 18th December 1887, A and B executed a mortgage in favour of the plaintiff; they dealt with the entire property and apparently ignored the interest of their brother C.A died in 1892 and left his two brothers B and C as his representatives. On the 30th November 1895 the mortgagee sued B and C to enforce his security. B was made a party in his character as one of the original mortgagors, and also as one of the representatives of A; C was described only as the representative of his deceased brother A There was no allegation in theplaint that the mortgage, though executed by A and B, was operative against C, either because the debt had been incurred for family purposes or because A and B had implied authority to bind their brother C. Neither B nor C entered appearance and an ex parte decree was made on the 19tb December 1895. The decree was executed in due course, the property was brought to sale and passed into the hands of the plaintiff. The plaintiff as execution purchaser obtained symbolical delivery of the property, but not actual possession. He accordingly instituted the present suit on the 6th August 1907 to eject the defendants who are the representatives of B and C, as C had died in 1898 and B in 1901. The Court of first instance decreed the suit in part. Upon appeal the Subordinate Judge has decreed the claim in full. On the present appeal, four points have been urged on behalf of the defendants, first, that the suit was barred under Section 47, Civil Procedure Code, and that the remedy of the plaintiff was by way of an application to the execution Court to be placed in actual possession of the purchased property; secondly, that the defendants are at liberty to impeach the ex parte decree as fraudulently obtained and consequently inoperative; thirdly, that the defendants are not bound by the doctrine of res judicata and are entitled to establish that the plaintiff has acquired title, if at all, to only two-thirds share of the property, that is, only to the interest of the two mortgagors A and B; and fourthly, that there should be no decree for jonint possession of the huts, which are used for residential purposes by the family of the mortgagors and of their deceased brother.

(2.) As regards the first ground, there is plainly no substance in it. The plaintiff obtained symbolical delivery after the sale had been confirmed. That delivery was operative against the judgment-debtors, who from the date thereof became trespassers. The plaintiff can consequently sue to recover actual possession from them. This view is in accord with the decision in Sasibhushan Mookerjee v. Radhanatk Bose 25 Imd. Cas. 267 : 20 C.L.J. 433 : 19 C.W.N. 5 where this Court dissented from the contrary opinion expressed by the Bombay High Court in Sadashiv Mahadu v. Narayan Vithal 11 Ind. Cas. 987 : 35 B. 452 : 13 Bom. L.R. 661 and by the Madras High Court in Kattayat Pathumayi v. Raman Menon 26 M. 740 : 13 M.L.J. 237. We are accordingly of opinion that the suit as framed is maintainable.

(3.) As regards the second ground, it need not be disputed that, as was ruled by this Court in Rajib Panda v. Lakhan Sendh Mahapatra 27 C. 11 : 3 C.W.N. 660 and Nistarini Dassi v. Nundo Lall Bose 26 C. 891 : 3 C.W.N. 670; Nistarint Dassi v. Nundo Lal Bose 30 C. 369 : 7 C.W.N. 353 the defendants are competent to impeach the ex parte decree on the ground of fraud by way of defence to the claim of the plaintiff. But the answer to the contention of the appellants is that no issue was raised on this point and they cannot be permitted to attack the decree as fraudulent, when the question is not covered by any of the issues and the evidence has not been directed to the elucidation of this matter.