PIARE LAL Vs. KISHAN LAL

JUDGEMENT

(1.) On 6 July 1917, the appellant, Piare Lal, obtained a decree for sale against certain persons including one Ganga Sahai. Ganga Sahai was made a party as transferee of part of the mortgaged property. After his death Kishan Lal was a party to the proceedings. This decree was absolute. A certain property was put up to sale on 26 September 1922, and purchased by Piare Lal decree-holder himself. The sale was confirmed, and Piare Lal was put in possession on 4th February 1923. Subsequently Kishan Lal objected under Sec. 47, Civil P.C., in the execution department on the ground that the property sold contained his own property of which he was purchaser and which was not included in the absolute decree for sale passed on 6 July 1917. This application was dismissed and an appeal from the order of dismissal was rejected by this Court. While the appeal from the decree in the execution department was pending here, Kishan Lal filed the present suit on 12 December 1923, for a declaration that the property specified at the foot of the plaint was not included in the decree absolute for sale, that it was not liable to sale in execution of that decree, and for cancellation of that sale and possession of the property. An ancillary relief for mesne profits was also desired. The appeal in the execution department was dismissed by this Court on 16 May 1924. The Subordinate Judge of Bulandshahr dismissed the present suit on 14 January 1925, as being barred by the provisions of Section 47, Civil P.C. As has already been noticed action under Section 47 had been taken prior to the institution of the present suit, so no question arises of the plaint being turned into an application, in the execution department, of objection to the sale. The question at issue before the Subordinate Judge and before the lower appellate Court was, as it is here, whether a separate suit would lie under the circumstances of the case.

(2.) If the plaint is read the main basis of the claim will be found to be the allegation that property not included in the mortgage was sold at auction in execution of the decree. In the decree property entered in the mortgage-deed was ordered to be sold. This allegation is made in para. 7 of the plaint and again repeated in para. 11. In only one place in the plaint any mention is made of fraud, that is in para. 9, where the plaintiff stated: The plaintiff's father (meaning Ganga Sahai) came to know of the fraudulent and dishonest proceeding of defendant 1 at the time of sale.

(3.) No specification of fraud is given, and the proceeding of selling property not included in the sale is alleged fraudulent and dishonest simply for the reason that property not included in the decree was wrongly sold at auction by order of the Court. The remarks of the trial Court on this portion of the plaint allegation are just. He said: No fraud on the part of the decree-holder was specifically alleged and described in the plaint, and nothing of that sort against him was proved, and the plaintiff himself, though present, was not even produced to prove any fraud having beep practised upon him by the decree-holder in the execution proceedings.