JAI SINGH Vs. CHIRANJI LAL

JUDGEMENT

(1.) The only question for decision in this appeal is whether the suit was maintainable or whether the plaintiffs-appellants remedy lay in an application under Section 47 of the Civil Procedure Code to the executing Court.

(2.) The facts of the case are given in the judgment of the Court below and are briefly these for the purposes of this judgment. The respondent No. 1 had a mortgage from one Har Prasad. This was dated 9 of August 1897. Har Prasad sold his share, which was four annas, to appellant No. 1 and the predecessor in- title of the remaining appellants. There was a pre-emption suit by Mt. Akbari Begum, the predecessor-in-title of the respondents other than the respondent No. 1, with respect to the four annas share sold by Har Prisad. Mt. Akbari Begum's suit was compromised and by that compromise Mt. Akbari Begum obtained two annas share out of four annas and the plaintiffs retained the remaining two annas. The plaintiffs or their predecessor-in-title also held a mortgage from one Har Prasad, but nothing turns on that for the present. Chiranji Lal brought a suit for sale of Har Prasad's four annas property, but omitted to make Mt. Akbari Begum or her representative parties to it. He made the present appellants or their predecessors- in-title parties with the allegation that they had purchased the entire property sold. The suit was not defended and was decreed ex parte. In the execution proceedings the decree-holder described the property as property in the possession of the appellants. That is a description which finds place in the sale certificate and also in the dakhalnama or acknowledgment of delivery of possession executed by the auction-purchaser. Chiranji Lal himself purchased in execution of his decree. The appellants now come and say that they held only two annas share in the property of Har Prasad, that the remaining two annaa share was in the possession of the respondents other than Chiranji Lal, and that therefore back possession over two annas. It seems to be the case that by several purchases the appellants own 12 annas share in the mahal, while the respondents other than Chiranji Lal own the remaining four annas share. It was because the plaintiffs owned more than two annas share that Chiranji Lal found it convenient to obtain possession over four annas share and also a mutation of names in his own favour in the revenue Court.

(3.) The Courts below have dismissed the suit on the ground that a suit would not he, and the remedy of the appellants lay by an application to the executing Court.