MAKHAN LAL KELA Vs. BALDEO PRASAD

JUDGEMENT

(1.) This is a defendants second appeal arising out of a suit for possession. The facts which have given rise to this appeal can briefly be stated as follows: On 17th August 1922, defendants 2nd party executed a mortgage deed for Rs. 1500 in favour of one Kunj Behari Lal in respect of the property in suit. Kunj Behari Lal obtained a final decree on foot of his mortgage in 1929. He put the mortgaged property to sale and himself purchased it at an auction sale on 20 August 1930.

(2.) On 18 August 1931, the plaintiffs in the present suit purchased the property in suit from the mortgagors of Kunj Behari Lal. Under the terms of the sale deed, the plaintiffs were to pay in the decree money due to Kunj Behari Lai. The plaintiffs made an application to the Court which had sold the property in execution of Kunj Behari Lal's decree under Rule 89 of Order 21, Civil P.C., for setting aside the sale. The Court dismissed the plaintiffs application. They preferred an appeal and there a compromise was arrived at between the plaintiffs on one side and Kunj Behari Lal, the auction-purchaser decree-holder, on the other. Among other things, it was agreed that the plaintiffs would get the property in suit and in the sale certificate their names would be entered as auction- purchasers in place of Kunj Behari Lal. The Court accepted the compromise and passed an order directing that the application of the plaintiffs for setting aside the sale be allowed in the terms of the compromise. Under the terms of this compromise the names of the plaintiffs were substituted in the sale certificate for the name of Kunj Behari Lal and they obtained an order getting formal possession over the property in suit. Then they applied for mutation and there the defendants, appellants to the present suit resisted. It appears that the defendants who are appellants had a simple money decree against the mortgagors. They put the property in suit to sale in execution of their decree and purchased it at a Court sale on 27 October 1931, and got possession and mutation. The application made by the plaintiffs for mutation was thrown out and so the plaintiffs filed the suit which has given rise to the present second appeal. Their suit has been decreed by the lower Appellate Court. Several pleas had been taken in defence by the appellants but in this Court only one point has been urged which requires consideration.

(3.) Learned Counsel for the appellants has urged before me that the order of the Court on the basis of the above mentioned compromise was ultra vires and the Court had no jurisdiction to pass it. According to learned Counsel's argument, Kunj Behari Lall is still the owner of the property in suit and the plaintiffs acquired no right under the terms of the compromise. I have heard learned Counsel on both sides and) am of opinion that the contention raised by learned Counsel for the appellants is-sound and must be accepted. Rule 94 of Order 21, Civil Procedure Code enacts: Where a sale of immovable property has become? absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.