BHAWANI SHANKAR Vs. MAHMUD ALI

JUDGEMENT

(1.) This is an appeal by one Bhawani Shankar against a decision of the learned Second Civil Judge of Cawnpore dated 25 May 1935 allowing an application of the respondent Mahmud Ali under Section 144, Civil P.C., for restitution of a certain property. The learned second civil Judge acceded to the application, hence the appeal of the objector Bhawani Shankar. The facts of the case, in so far as they are material to this application, can be shortly stated as follows:

(2.) On 12 February 1917 one Fazal Ali mortgaged certain property by a conditional sale to the applicant and others. On 28 April the applicant together with one Durga Prasad filed a suit No. 15 of 1928 to enforce the mortgage. By this time Fazal Ali had died and the suit was brought against his heirs, some of whom were major and some minor. The present respondent Mahmud Ali was a major whereas his brother and sisters were minors. The minors were represented by a guardian ad litein and eventually the suit was compromised and a decree passed in terms of the compromise. The full terms of the compromise have not been placed before me but it would appear that the compromise was very favourable to the mortgagees who obtained possession of the mortgaged property. By the year 1934 Masood Ali, a brother of the respondent Mahmud Ali attained his majority. He consequently filed a suit No. 37 of 1934 claiming that the mortgage decree was not binding on him and therefore that he was entitled to one-fifth of the property which the mortgagees had obtained under the compromise and the decree passed in accordance with it. A similar suit No. 34 of 1934, was filed on behalf of Masood Ali's two minor sisters and in that suit they also claimed one-fifth of the property in question.

(3.) These two suits were eventually decreed and possession given to Masood Ali of one-fifth of the property and possession of another one-fifth share of the property was given to his two minor sisters. In those suits allegations of fraud and collusion had been made but these allegations were held not to be proved. The learned Judge who decided the case however held that the interest of these minors had not been properly safeguarded in the original mortgage suit and that the compromise was not in their interest, and he, therefore, held that the decree did not bind these persons and that they were entitled to possession of the shares which they claimed.