COLLECTOR OF MORADABAD Vs. MOHAMMAD HIDAYAT ALI

JUDGEMENT

(1.) The dispute has arisen in the execution of a decree for sale on foot of a mortgage. The property is situated in village Jalalabad. On 27 August 1901 two mortgage deeds of 8 biswas property out of 20 biswas was executed by the owner in favour of Sahu Ganpat Rai and subsequently in 1909 the entire village was mortgaged to Sahu Parshadi Lal whose estate is now under the Court of Wards. Subsequently in 1912 twelve biswas out of the village was again mortgaged to Ganpat Rai.

(2.) In 1913 Ganpat Rai obtained two decrees for sale on foot of the two mortgages in his favour Parshadi Lal was made a party to the suit but on objection as to notice being raised by the Court of Wards, Parshadi Lal and the Court of Wards ware exempted from the suit and the decree for sale was not passed against them. The decree resulted in a sale in favour of the objector Hidayat Ali Khan in 1916.

(3.) In 1914 the Court of Wards sued the mortgagor for sale on foot of the mortgage of 1909 in favour of Parshadi Lal. Ganpat Rai was made a party to the suit but no mention was made in the plaint of his prior mortgage of 1901. It was stated in the plaint that Ganpat Rai was a subsequent mortgages under the mortgage of 1912 and had therefore a right to redeem. It is also admitted that in the plaint there was no specific prayer that the property should be sold free of encumbrances.