DODBASAPPA DHARMAPPA Vs. PRADHANAPPA VENKAPPA

JUDGEMENT

(1.) The plaintiff-appellant Dodbasappa purchased the right title and interest of defendant No. 3 Shiddappa and defendant No. 4, Pundappa, in the land in suit in execution of a money decree against them in favour of Rangrao in Suit No. 62 of 1905. The sale was confirmed and the appellant got the sale certificate in 1907. The present suit is for possession Defendants-respondents Nos. 1 and 2 refuse to give him possession on the ground that they are in possession as mortgagees and that the mortgage has not expired. The suit is also resisted by defendants Nos. 3 and 4 on the ground that the appellant has been guilty of fraud in execution. Both the lower Courts have upheld the respondents plea and dismissed the suit. The plaintiff appeals.

(2.) The precise issues found in both the lower Courts were that the execution had proceeded without notice to respondent No. 4 and that the appellant was guilty of this fraud as well as of misrepresentation to the Court at the time of sale that there was a mortgage of Rs. 2,500 on the property, whereas the actual mortgage amount was less. He thus induced the Court to confirm the sale though the price realised was Be. 325.

(3.) Four main points are taken in the appeal for the appellant. (1) The respondents having failed to pursue their remedy to set aside the sale as laid down under Order XXI, Rule 90, cannot now set up the present defence without first setting aside the sale by way of application or suit. (2) Respondent No. 4 failed in his pleadings to give the necessary particulars of the fraud; and the fraud held proved was based on a new case set up by the trial Court and not raised by respondent No 4. (3) The findings of fraud were based not upon the legal evidence but were surmises arrived at by irregular procedure. (4) A.8 in any case, defendant-respondent No. 3, who was admittedly as owner of the northern half, had not defended the suit, as against him at least, the appellant's claim should have been allowed.