DEWAN SYED ALEY RASUL Vs. SETH BALKISHAN

JUDGEMENT

(1.) This is a reference under Section 17 of the Ajmer Regulation 1 of 1877. Before we state the precise question referred to this Court, the previous history of the case which has given rise to it should be stated. By a deed, dated 22nd January 1912, Dewan Immamuddin, a former sajjadanashin of the Ajmer Dargah, hypothecated a number of properties, including a jagir , income from the shrine, a haveli and a nohra , also called a bagh , to secure the advance of a certain sum of money. The original mortgagor died, and was succeeded by Dewan Sharfuddin, against whom a suit for sale of the mortgaged properties was brought by the mortgagee. A preliminary decree was passed in the usual terms. On 28th September 1920, the Court recorded an order directing the preparation of a final decree. It is common ground that no-final decree is traceable. It may be that no such decree was ever prepared through an oversight on the part of the office or that one was prepared but has been lost. Sharfuddin died on 2 December, 1922, and the mortgagee Amir Chand died on 8 October 1924, before the mortgage decree could be satisfied.

(2.) An application for execution had been made in the lifetime of the original par. ties on 1 October 1920; but, on the application of Sharfuddin to the Government for a certain loan, the execution proceedings were in abeyance. The Government finally refused the loan applied for by an order, dated 16 October 1924. The legal representative of the mortgagee made an application on 17 March 1925, asking for the revival of the execution proceedings and also for substitution of names for those of the original parties to the execution proceedings. Sharfuddin was in the meantime succeeded by Aley Rasul as dewan and sajjada-nashin . He put forward a number of objections, one of which was that he was not the-legal representative of the deceased Sharfuddin and that the mortgaged properties- were not transferable and could not, therefore, be sold in execution of the decree. The Subordinate Judge and the-Additional District Judge took different views on the questions raised by the objections. Eventually the Judicial Commissioner held, by an order, dated 23 April 1930, that the important question to consider was whether the mortgaged properties in dispute were alienable. Accordingly he reversed the orders of the subordinate Courts and remanded the case-to the Court of first instance for determination of the question indicated by him. The Subordinate Judge held after remand, by an order, dated 15 March 1933, that none of the mortgaged properties, except the haveli and the nohra also called the bagh , was in its nature transferable. He also held that Aley Rasul was the legal representative of Sharfuddin qua these two properties. Accordingly he directed execution to issue in respect of these two properties.

(3.) An appeal by Aley Rasul to the District Judge was unsuccessful. On the sale proclamation being prepared, Aley Rasul put forward a number of objections mostly directed against alleged defects in the preparation of the sale proclamation. Some of the objections, however, are construed in these proceedings as raising a question of title. These objections were dismissed by the Court of first instance on 28 November 1933. The appellate Court upheld the order of the Court of first instance by an order, dated 26 July 1934. For reasons, which do not appear from the record and which it is not necessary to mention, no sale took place in pursuance of the sale proclamation to which reference has been made, and a fresh sale proclamation was subsequently prepared when Aley Rasul took a fresh set of objections on 11 August 1934. The first of this was that, as no final decree had been prepared, there was no decree capable of execution before the Court, the preliminary decree not being one which the Court could execute. The second was that no substitution of names for those of the deceased parties having been made under Order 22, Civil P.C., within the limitation allowed by law, the suit had abated long before the application for execution was made. Lastly, it was pleaded that the mortgage money, mentioned in the preliminary decree, was charged on all the properties detailed in the mortgage deed and that only two of the properties, namely, the haveli and the nohra or bagh could not be sold in satisfaction of the entire mortgage money. These are the objections which the Court has to decide.