KUNDAN SINGH Vs. MUSAMMAT SURJA KUAR

JUDGEMENT

(1.) THE facts connected with this appeal are fully stated in the judgment of the learned Judge of this Court and it is unnecessary to repeat them. Mr. Peary Lai Banerji, on behalf of the appellants, strongly relies upon the ruling in Malkarjun v. Narhari 25 B. 337 : 5 C. W N. 10 : 2 Bom. L.R. 927 : 27 J. A. 216 : 10 M. L.J. 368 : 7 Sar. P.C.J. 789. 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 bit seeks possession and he must succeed upon the strength of his own title. Furthermore there is this great distinction between the two cases. In the case relied upon the property had been sold in execution of a simple money-decree which had been obtained during the lifetime of the judgment-debtor. In the present case only a decree nisi (as it was then called) had been obtained during the lifetime of Musammat 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 interests 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.