KUNDAN SINGH Vs. SURJA KUNWAR

JUDGEMENT

(1.) THE facts connected with this appeal are fully stated in the judgement of the learned Judge of this Court and it is unnecessary to repeat them. Mr. Piari Lal Banerji, on behalf of the appellants, strongly relies upon the ruling in Malkarjun v. Narhari (1900) I.L.R. 25 Bom. 337. In the present case the plaintiffs sued for possession. THEir title depends upon an auction sale in the execution of a mortgage decree, In the case relied upon the defendant was in possession. In the present case the plaintiff is not in possession but seeks possession, and he must succeed upon the strength of his own title. Furthermore, there is this great distinction between the two oases. In the case relied upon the property had been sold in execution of a simple money decree which had been obtained during the life-time of the judgement-debtor. In the present case only a decree nisi (as it was then called) had been obtained during the life-time of Musam-mat Rukmin. It was not until after her death, and in the absence of her heirs, except one, that the order absolute was obtained. It seems to us therefore that there was not in existence any decree under which the interest of the other heirs could be sold. We think therefore that the decision of the learned Judge of this Court was correct and should be affirmed. We accordingly dismiss the appeal with costs.