RAJBANSI ROY Vs. MAHABIR ROY

JUDGEMENT

(1.) The essential point in this case, as it has been laid before us, may be briefly stated. The property in suit amounting to five cowris odd was originally the property of one Bharosan. In July 1882 he mortgaged four cowris to the predecessors-in-interest of the appellants. He died in November 1882. Very shortly after his death, two of his sons mortgaged about 2 1/2 cowris to the predecessor-in-interest of the appellants and one Pyari Roy. At the end of 1883, the plaintiffs purchased the whole of the five cowris odd in execution of a money-decree. The appellants and Pyari Roy sued on the mortgage of November 1882 and obtained a decree on the 18 May 1892. The property mortgaged, that is to say 2 1/2 cowris, was ultimately sold on the 15 December 1895. The plaintiffs had been made parties to that suit in the capacity of purchasers under the money-decree of 1883. Subsequent to the decree in that suit and before the sale, the plaintiffs had, on the 22 March, 1893, purchased the four cowris which had been mortgaged on 5 July 1882 in execution of a decree obtained by the appellants on that mortgage. The plaintiffs have sued for possession of the whole of the property.

(2.) The Munsif gave them a decree for the property purchased by them on the 22nd March 1893 and also for two-fifths of the remainder of the property. The Subordinate Judge confirmed the decree with respect to the four cowris purchased by the plaintiffs in 1893 and gave them a decree for one-fourth of the residue.

(3.) The defendants appeal and the principal contention raised on their behalf is that so far as regards the 2 1/2 cowris purchased by them in December 1895, the suit is barred by Section 244, Civil Procedure Code. It is argued that the plaintiffs were parties to the suit in which that sale was held. At the time of the decree they were mere purchasers under a money-decree and were not in a position to contest the decree itself but that subsequently in March 1893, they purchased four cowris out of the five cowris odd in execution of a decree on a prior mortgage: and it is argued, therefore, that as they obtained subsequently to the decree of May 1892, the right to object to the sale in execution of the property covered by that decree, they should have raised that objection under Section 244 and cannot now be permitted to raise it in a separate suit.