ATMA RAM Vs. NANAK CHAND

JUDGEMENT

(1.) This is an appeal by an auction-purchaser in the following circumstances:

(2.) One Mahbub Ali Shah was the original owner of a certain share in the property described as 61/3 sihams. He mortgaged four sihams out of the aforesaid share to his wife Sultana Begam as a first mortgagee, and then he mortgaged the entire 61/3 sihams to the respondent decree-holder Peary Lal. Sultana Begam obtained a decree for sale and it appears that in her suit Peary Lal was not a party. Sultana Begam's decree was executed and the four sihams share mortgaged was sold and was purchased, by the respondents Nanak Chand and Mt. Parbati. Peary Lal then brought his own suit. The order that was passed in the decree that followed was that the property mortgaged might be sold; but, if Peary Lal wanted to sell the property purchased by Nanak Chand and Mt. Parbati, he must pay them a sum of Rs. 20,000 as a condition precedent to the sale. Peary Lal never paid the sum of Rs. 20-000, but brought to sale a 2 1/3 sihams share, with the allegation that this was a property which could be sold without previous payment of any money. Nanak Chand and Mt. Parbati objected to the sale. They said that the property which was going to be sold was really a part of the property which they had purchased in execution of a decree passed on the prior mortgage.

(3.) While this objection of Nanak Chand and Mt. Parbati was still undisposed of the share advertised for sale was brought to sale and was purchased by the appellant Atma Ram. The objection was decided in due course on the 9 of December 1922 and it was dismissed. The sale was confirmed on the 12 of December 1922. Nanak Chand and Mt. Parbati filed an appeal to this Court against the order dated 9 of December 1922. It having transpired that the property had in the meantime been sold Atma Ram the auction-purchaser, was made a party in appeal. A Division Bench of this Court found on appeal that the judgment of the Subordinate Judge was very unsatisfactory, set it aside and remanded the objection to the Court below for disposal. The Court below had three parties before it, viz., Atma Ram, the auction-purchaser, Nanak Chand and Mt. Parbati, the objectors; and the decree-holder Peary Lal. It came to the conclusion that the property sought to be sold was really a part of the property which had been purchased by Nanak Chand and Mt. Parbati, and that therefore the property could not be sold in execution of Peary Lal's decree without the payment ordered. It accordingly set aside the sale and ordered that the objectors be pat in possession. As regards the purchase money the Court remarked that Atma Ram might recover it by a regular suit.