LALDHARI KUER Vs. UMA SHANKER PRASAD

JUDGEMENT

(1.) This is a plaintiffs second appeal from the concurrent decisions of the Courts below dismissing their suit for a declaration that the execution sale held on 27fch July 1939, in favour of the landlord defendant-first party, did not affect the plaintiffs interest as usufructuary mortgagees in respect of a portion of the holding.

(2.) The facts in this case are not in dispute, and lie within a very narrow compass. The defendants second and third parties were the raiyats in respect of an occupancy holding under the defendant-first party as their landlord. The defendant-second party executed a usufructuary mortgage bond on 19 May 1924, in respect of a portion of the holding, namely, 1 bigha 3 dhurs odd, which is the disputed land in this case. In 1936, the defendant-first party landlord brought a suit for arrears of rent against the raiyats, defendants second and third parties, and obtained an ex parte decree. In execution of that decree, he put the holding to sale, and purchased it himself on 27 July 1939. Thereafter he took delivery of possession. The plaintiffs objected to the sale and made an application under Order 21, Rule 90, Civil P.C., for setting aside the sale. But, subsequently, they withdrew that application. Eventually, they brought the suit which has led up to this second appeal. They sued, in substance, for a declaration that the landlord's auction purchase of 27 July 1939, in execution of the decree for rent did not affect their interest as mortgagees in possession.

(3.) The defendant-first party only contested the suit on the ground, chiefly, that the decree for rent was not a money decree, as alleged by the plaintiffs, but a rent decree properly so called, and as such his purchase in execution of that decree passed the holding itself free from all encumbrances created by the raiyats, and that, he being the landlord, it was not incumbent upon him to have the encumbrance annulled, even though it may be found by the Court that the encumbrance was a real one. The defendant had, as a matter of fact, contended that the usufructuary mortgage bond sued upon by the plaintiffs was not a real but a sham transaction.