S SHAUKAT ALI Vs. BSHEO GHULAM

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit was dismissed by the learned Subordinate Judge of Farrukhabad. It appears that one Mt. Kulsuman Bibi, who is defendant 2 in the present suit, was indebted to Mt. Kasturi and to Sheo Ghulam. Mt. Kasturi held a mortgage and on the basis of that mortgage she brought a suit for sale, impleading Mt. Kulsuman, the mortgagor, and Sheo Ghulam, the subsequent mortgagee. She obtained a final decree on 28 October 1927 and applied for execution of the decree by sale of the mortgaged property. The property was advertised to be sold on 21 January 1929, but the sale was avoided because on 5 January 1929 Mt. Kulsuman sold the property to the plaintiff Shaukat Ali for Rs. 8,000. The details of the sale consideration are that:

(2.) It is common ground that the decretal amount of Mt. Kasturi was paid up by Shaukat Ali although not quite immediately. The Court below has come to the conclusion that Rs. 278-6-0 put down in the sale-deed as having been paid for execution and registration of the document is a bit exaggerated and that Rs. 125 seems to be ample for the purpose. He has no doubts as to the genuineness of Rs. 1,000 paid in cash before the Sub-Registrar but is of the opinion that the evidence to prove the payment of Rs. 400 as earnest money is not reliable. About the time that Mt. Kasturi obtained her final decree on the basis of her mortgage suit Sheo Ghulam instituted a suit against Mt. Kulsuman on the basis of three mortgages which he himself held. They are dated 11 June 1921, 3 October 1922 and 16th December 1922, and it appears that the property mortgaged to him was practically the same which had been mortgaged to Mt. Kasturi. He, when he came to know that; the mortgaged property was about to be sold in execution of a decree on a prior mortgage, made a statement through his pleader on 19th December 1928 relinquishing the mortgaged property and prayed for a simple money decree. On the basis of this statement Sheo Ghulam obtained a simple money decree on the same date for Rs. 2,967-3-0 and Rupees 328-10-0 costs.

(3.) It is also clear that he came to know of the negotiations between Mt. Kulsuman and Shaukat Ali-negotiations which culminated in the sale-deed of 5th January 1929-and therefore on 2 January, 1929, before the decree in his suit had been actually drawn up, applied for execution of the decree by attachment of the property which was sold three days subsequently to Shaukat Ali. The order for attachment was passed on 5 January 1929 although the property was actually attached on 28 January 1929. On the date when the order for attachment was passed the sale-deed which is the basis of the present suit was being executed in Chhibramau between 2 and 3 p.m. and was presented for registration between 3 and 4 p. m.