BISAN RAM PATRI Vs. SATIS CHANDRA SARMA

JUDGEMENT

(1.) The plaintiff, in execution of a decree against one Ilim Sheikh, obtained delivery of possession from Court on the 14th June 1900. The defendant thereupon raised an objection in the execution Court that he had, in execution of a mortgage-decree, obtained possession of the property on the 5th of May 1900, and was in possession of the property by letting out the same to the heirs of the judgment-debtor Ilim. The Court executing the decree enquired into the matter and came to the conclusion that the defendant had failed to prove that he was in possession or that the judgment-debtor s heirs were in possession as his tenants. The objection raised by the defendant was, therefore, disallowed under Section 335 though, in the proceedings, the Section is mentioned as Section 332. That mistake, however, does not affect the question, because the question to be considered in a proceeding under Section 335 appears to have been considered by the Court. An order under Section 335 is final against a party, subject to the result of any suit to establish the right which he claims to the present possession of the property. No suit was brought by the defendant within one year of the order. It is true, the respondent is not the plaintiff but the defendant in the suit. But it was pointed out in Surnamoyi Dasi v. Ashutosh Goswami 27 B. 640 : 11 Dec. (N.S.) 1009: "There is nothing in Section 283 to show that the conclusive effect referred to in it attaches to the order only when the party against whom it is made is plaintiff in the suit in which it is set up as a bar." The same observation applies to a case under Section 335, and we agree with the view taken in that case.

(2.) We do not think that the defendant has been prejudiced by reason of the mistake in the proceedings where the Section referred to is Section 332 instead of Section 335. No doubt under the old Limitation Act, Article 11 was not applicable to an order under Section 332, Civil Procedure Code. Bat the period of limitation has been reduced to one year under Article 11 of the present Limitation Act; and under Section 30 the defendant had two years after the passing of the present Limitation Act within which to institute a suit under Section 332. This suit was hot brought until 1911, i.e., about three years after the passing of the present Limitation Act. We are accordingly of opinion that the defendant has not in any way been prejudiced by reason of the mistake in mentioning the Section in the order passed by the executing Court. That being so, the defendant cannot resist the claim of the plaintiff so far as his right to the present possession of the property is concerned.

(3.) The Court below, however, has come to the conclusion that the plaintiff has failed to prove that his mortgage was prior to that of the defendant. The defendant being a prior mortgagee, the sale at which the plaintiff purchased was subject to his prior mortgage. That right of the defendant is not concluded by the adverse decision under Section 335 see Bhiku v. Shujat Ali 29 C. 25. The plaintiff was no party to the suit by the defendant upon his mortgage. We are accordingly of opinion that the plaintiff should be allowed to redeem the mortgage of the defendant and to recover possession on such redemption. We accordingly direct that, on the plaintiff paying to the defendant the sum for which the defendant obtained a decree against the mortgagor, he do recover possession of the properties from the defendant. If any properties other than the properties in suit were included in the mortgage, the Court will apportion the amount due to the defendant between the properties in suit and such other properties. The Court below will fix a time within which the plaintiff must pay the amount to the defendant. The plaintiff will not be allowed any mesne profits and the defendant will not be entitled to claim any interest subsequent to the date of his mortgage-decree. Under the circumstances, each party will bear its own costs in all the Courts.