(DEWAN) EMDAD ALI Vs. HARAN SHEIKH

JUDGEMENT

(1.) The facts of the case are as follows: One Najimuddin and two other persons owed a considerable amount of money to the respondent Haran Sheikh, who brought his suit to recover the same on 27 April 1931 and recovered a decree on 16 January 1932. In execution of his decree he purchased on 20 June 1932 half-share of the property which is the subject-matter of this appeal. Shortly after Najimuddin had incurred his liabilities to Haran Sheik, he executed in favour of the appellant, Dewan Emdad Ali, a mortgage bond on 12th Assin 1336, corresponding to a date in September 1929. The mortgage is an unusual one because it not only included all his immoveable properties but also all his moveables including his cooking vessels and all his earthly possessions. This mortgage followed a hibabil-ewaz which he had executed in favour of his wife in lieu of alleged dower which included also all his immoveable properties and all his moveables. This hibabil-ewaz was undoubtedly a fictitious transaction and has been found to be so by the lower Court, but it has no direct bearing upon the question raised before me. Shortly after the aforesaid mortgage Dewan Emdad Ali brought a suit to enforce it.

(2.) He got a preliminary decree on 25 February 1932, and a final decree on 20 April 1932. Shortly after obtaining his decree Haran Sheikh applied for execution. In one execution (Money Execution 88 of 1932) he prayed for sale of moveables and in another execution (Money Execution 20 of 1932) he prayed for sale of immoveable properties. Dewan Emdad Ali made two applications to the Executing Court in the two execution cases, one relating to the moveables and another to the immoveables. I am only concerned with his application in respect of the immoveable properties against which Haran Sheik wanted to proceed. It is not an application under Order 21, Rule 59 of the Code. He simply asked his mortgage decree to be notified at the time when the immoveable properties attached by Haran Sheikh would be sold. On that application the Court passed the following order on 2 May, 1932: One Dewan Emdad Ali puts in a petition that the property mentioned in lot No. 2 of the execution petition, which has been advertised for sale is mortgaged to him and the mortgage suit has been decreed in the local 2nd Munsif's Court. It is ordered that the mortgage to be noted upon (?) at the time of sale, as the sale proclamation has already been issued.

(3.) At the time of the sale Dewan Emdad Ali's mortgage was notified, and at the sale the decree-holder Haran Sheik purchased the same, as I have stated above, on 20 June 1932. Dewan Emdad Ali put his mortgage decree in execution and purchased the mortgage properties (16 annas of the property now in dispute was one of them) on 25 February 1933. He applied for possession and was resisted by Haran Sheikh and the proceedings out of which this appeal arises were started by Dewan Emdad Ali, he applying to the executing Court to be put in possession of the entire property. Haran Sheikh resists his claim to a half-share therein, the share which he purchased in execution of his decree.