SHANKER RAO CHITNAVIS Vs. GANPAT RAO PANDE

JUDGEMENT

(1.) THIS judgment also disposes of first appeal No. 20 of 1923.

(2.) IT seems that in civil suit No. 7 of 1920 on the file of the District Judge Ganpatrao Pande obtained a mortgage decree against Raoji and others, defendant 4 in that suit being Shankar Rao Chitnavis, the present appellant, and defendant 3 Samsherkhan was held entitled to redeem because of a decree in a redemption suit obtained by him on 2nd August 1913. In that suit the mortgagors sued to redeem but failed to do so, and Samsherkhan, who was in possession as a possessory mortgagee, is said to have retained possession as owner from the date of that decree. Then in civil suit No. 8 of 1920 Ganpatrao Pande got a decree against Raoji and others, Samsherkhan being defendant 3 and Shankar Rao Chitnavis being defendant 4. This decree was for Rs. 10,124-2-3. In the first case, in which the final decree was passed on 3rd February 1922, the property concerned was an 8-annas share of mauza Garada with cultivating rights in sir and houses situated therein, the whole of mauza Nawegaon with the cultivating rights in sir and houses therein, and mango trees in four villages, viz. Jangli, Garada, Chandori and Salepati. In the second suit, No. 8 of 1920, the property mortgaged consisted of an 8 annas share of mauza Garada with all rights except cultivating rights in sir land, and 16-annas share of Nawegaon without cultivating rights in sir. The execution of the decrees was sent to the Collector who sold the property which fetched Rs. 16,000 at the sale, and the surplus proceeds transferred to the civil Court came to Rs. 1,554-2-11. That surplus the executing Court has given to Samsherkhan, and against that order the present two appeals have been filed.

(3.) ANOTHER ground on which it is contended that the sale should be set aside is that the decree in suit No. 7 of 1920 covered only 56 acres of sir, while the, whole had been sold. But the decree covers the whole of the sir, and if Raoji was not satisfied with that decree his business was to appeal against it. It is too late to do so now. This disposes of first appeal No. 20 of 1923. It is dismissed with costs, and the appellant will pay respondent's costs.