(SANKURATRI) DORAYYA Vs. GOVINDARAJULU NARASIMHAM

JUDGEMENT

(1.) This appeal arises out of a suit by the respondent to declare his title and recover possession of the property mentioned in the plaint.

(2.) The facts are shortly these: The plaintiff obtained two mortgages on this property and other properties, and obtained a mortgage-decree. He brought the property to sale in execution of the mortgage-decree, and purchased the property on 21 January 1921. Defendants 1 and 2, who are the appellants, purchased the property in execution of a rent decree. The sale was on 27 November 1920. The rent decree was passed by a revenue Court and it declared that the property was subject to a first charge for the rent. On 22nd November 1920 the plaintiff filed a claim petition which was dismissed as too late without any enquiry. In the claim petition, Ex. 4, all that he prayed was for an order on the plaintiff to get the property sold in execution subject to the mortgage-decree obtained by the petitioner. He sets out in the petition his mortgage and it does not appear from the record that the petitioner's mortgage was denied. He only wanted priority and the question was which of the two persons was entitled to priority. Whether the plaintiff who got a decree on his mortgage, or whether the appellants who purchased it in execution of the rent decree. There was no adjudication on the question, because the order was: The sale comes on to day. The application comes too late. The claim is rejected as too late.

(3.) The present suit was filed on 8 July 1922, more than one year after the order which was passed on 22 November, 1920.