MAKHAN LAL Vs. SOHAN LAL

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for recovery of possession of one-third share in certain properties. The Courts below have differed. The Court of first instance decreed the claim but the lower appellate Court has dismissed it so far as possession of the property is concerned but has awarded a decree for money instead.

(2.) In 1887 a mortgage was made by one Chhatta in favour of Makhan Lal and the defendants jointly for a sum of Rs. 2,700. About the last day of limitation a suit was instituted by the mortgagees other than Makhan Lal for sale on the strength of a certified copy, the original document being in possession of Makhan Lal who had himself neither instituted a suit nor joined with the others. Makhan Lal also held certain subsequent mortgages and he was, therefore, impleaded in a dual capacity as a mortgagee and a subsequent mortgagee. It is true that Makhan Lal made some attempts after the institution of the suit to have his name transferred from the array of the defendants to that of the plaintiffs but that application was rejected presumably on the ground that he being also a subsequent mortgagee could not be impleaded as a plaintiff. The suit was decreed on the 13 of April 1911, and a final decree for a sum of Rs. 10,000 and odd was passed on the 21 of February, 1913. In this decree Makhan Lal was shown among the defendants judgment-debtors although no doubt he was also a co- mortgagee. The decree-holders, namely, the mortgagees other than Makhan Lal, applied for permission to bid at auction sale and permission was granted to them. On the 23 of August 1916 the entire mortgaged property was up at auction and purchased by the decree-holders (namely the mortgagees other than Makhan Lal) for a sum of Rs. 5,800. As the personal remedy had become barred by time, it was impossible to realise the balance of the decretal amount.

(3.) Had the property fetched more than the decretal amount, Makhan Lal would have also received some money on account of his subsequent mortgages. As the property was sold for less amount than was due on the prior mortgage, his subsequent mortgages became useless to him. He applied to the Court of the Collector who had sold the property as an ancestral one for setting aside the sale. The first application was dated the 16 of September, 1916 and in this he complained that Piare Lal, one of the plaintiffs, had purchased the property for the decree-holders at an inadequate price and that the sale should be set aside. Before the Collector, Makhan Lal at one time expressed his readiness to pay up the purchase-money and have the sale set aside. The casa was postponed but no arrangement could be made and, therefore, ultimately he asked the Collector to finally set aside the sale.