MT SHIBBI Vs. HARDHIAN SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant for a declaration that she is entitled to certain property. There was an alternative prayer that in the event of it being found that she had lost possession of the property the decree should be one for possession. The circumstances of the suit are as follows: The owner of the property was originally one Ramjas. The plaintiff, Mt. Shibbi brought a suit for possession against him and obtained a decree on the 8 of May 1915. The decree was executed and the plaintiff obtained possession on the 27th of September 1915. Subsequent to this Ramjas executed a simple mortgage-bond in favour of Hardhian Singh, the plaintiff-respondent, in respect of half the property sold to plaintiff. Hardhian Singh brought a suit on the basis of this mortgage against Ramjas and therein impleaded Mt. Shibbi the plaintiff. Mt. Shibbi pleaded that the property had been sold to her by Ramjas before Ramjas executed the mortgage-bond in favour of Hardhian Singh. The Court found that this was correct.

(2.) But in view, of the fact that there was an earlier mortgage-bond executed in favour of Hardhian Singh by Ramjas it refrained from dismissing the suit against Mt. Shibbi. It held, however, that on the present mortgage-bond no claim could be maintained against Mt. Shibbi. It accordingly exempted Mt. Shibbi as a party and gave her costs, but gave the defendant against Ramjas a decree for sale in execution of which he got sold and himself purchased the whole property. Delivery of the property was given by the Court amin. In consequence of this delivery of the property Hardhian Singh obtained mutation of names. Thereupon, Mt. Shibbi applied under Order 21, Rule 100 of the Civil P.C. for restoration of the property on the ground that she had been dispossessed by Hardhian Singh in the execution proceedings following the decree obtained by the latter against Ramjas. This application was rejected by the Court on the ground that the amin's delivery of possession of the property had merely been symbolical and had not, in fact, caused Mt. Shibbi to lose possession of the property which had been hers up to the time of delivery by the amin.

(3.) The plaintiff Mt. Shibbi is still finding difficulty as the defendants assert their possession or at any rate their right to possession, and accordingly has brought the present suit. The first Court decreed it, and finding that Mt. Shibbi was, at the time of filing the suit, actually out of possession it gave not merely a declaration but a decree for possession. The lower appellate Court has held that the suit is barred by Section 47 inasmuch as the question between Mt. Shibbi plaintiff and the defendant is a question arising between the parties to the mortgage suit brought by the defendant and that in consequence the question should have been settled in the execution proceedings and no suit could be brought. The question is whether this finding is correct.