BULAKI DAS Vs. KESRI

JUDGEMENT

(1.) This defendants appeal arises out of a suit for possession instituted under the following circumstances, Kalidin executed a mortgage dated 13 June 1873, in favour of defendants 1 to 10, who later brought a suit on the basis of their mortgage, and brought some property to sale. A share was included in the sale which was not included in the mortgage or in the decree. The decree-holder himself purchased and obtained possession. The present suit was brought by the judgment-debtor to recover the excess sold,

(2.) The trial Court gave the plaintiff's a decree, and the lower appellate Court dismissed the defendants appeal. The defendants again appeal to this Court.

(3.) It has been again contended for the appellants here, as it was in the. Courts below, that the suit is barred by Section 47, Civil P. C, by Order 21, Rule 92, Civil P.C., and by limitation. For the respondents, in addition to contesting that none of these pleas barred the suit, it has been further urged that the sale was in fact a nullity. We will proceed to consider first the plea of the appellants based on Section 47, Civil P.C.