RAJMOHAMAD Vs. GOPAL

JUDGEMENT

(1.) THE facts leading to this second appeal are these: On 4th February 1925 defendant 2 sold his field No. 169, area 31 acres and 36 cunthas, to defendant 1 who mortgaged the same with the plaintiff on 26th June 1925 for a consideration of Rs. 325 defendant 2 being a surety to this transaction. In execution of his simple money decree obtained against defendant 2 in December 1925, defendant 3 purchased this field in the auction sale long after the mortgage in plaintiff's avour. An objection filed by defendant 1 in the execution proceeding of defendant 3's decree on the basis of the sale in his favour was rejected on 12th December 1925 on the ground that the sale was fraudulent.

(2.) THE plaintiff brought the suit, out of which this second appeal arises, in the Court of the Second Class Subordinate Judge, Akola, to enforce his mortgage. The case proceeded ex parte against the first two defendants but defendants 3 and 4 who are father and son resisted the claim on the ground that the original sale of the mortgaged field by defendant 2 to defendant 1 was void being without consideration and intended to defraud certain creditors of defendant 2 including themselves. The contending defendants also denied the mortgage deed sued upon and urged that the order in the execution proceedings disallowing the objection not having been set aside was final and binding on the plaintiff who was the legal representative of defendant 1. The trial Court held the execution of the mortgage deed in suit duly proved but not the passing of the consideration thereunder. It further held that the sale of the mortgaged field by the second defendant to defendant 1 was void, having been made without consideration and in fraud of the creditors of defendant 2. It also held that the order in the execution proceedings bound the plaintiff. As a result of these findings the plaintiff's suit was dismissed. On appeal by the plaintiff to the Additional District Judge, Akola, all the aforesaid findings were set aside and the plaintiff's claim decreed. The lower appellate Court held that there was consideration for the mortgage deed sued upon, that the sale of the mortgage field in favour of defendant 1 was genuine and not fraudulent and that the order in the execution proceedings against defendant 1 was not binding against the plaintiff who could not be called the legal representative of the objector (defendant 1).

(3.) THERE is no doubt that the two lower Courts should have taken into consideration both these sale deeds, but since the evidence on record was sufficient to determine the main question of the genuineness or otherwise of the sale of the mortgaged field by the second to defendant 1, I proposed to proceed under Section 103, Civil P.C. and decide the question here instead of remanding the case for a fresh taial. Accordingly I allowed the pleaders on both sides to argue all questions of fact involved in the case. It seems to me, however, that for the disposal of the present appeal it is not at all necessary to decide the question if the sale of the mortgaged field in favour of defendant 1 was voidable under Section 53, T.P. Act, under which alone, it is conceded by Mr. Hatwalne, the appellants challenged the sale, for I am clear that the appellants have no locus standi to impeach the same. It is also conceded that the previous order in the execution proceedings is not binding on the plaintiff.