MAHAMMED ISMAIL SAHEB Vs. RASOOL BI

JUDGEMENT

(1.) This second appeal has been preferred by plaintiffs who, as purchasers from defendant 2 and her brother Muhammad Hussain, claim to be entitled to the suit property, said to have been purchased by defendant 1 in execution of the mortgage decree that she obtained against defendant 2. The facts are these: Defendant 2 executed a mortgage deed Ex. 1 in 1911 in favour of defendant 1. Defendant 1 put that mortgage into suit, and when the suit was pending, the plaintiffs purchased the property under Ex. A from both defendant 2 and her bother Muhammad Hussain. Plaintiff 2 as P.W. 1 admits that a portion of the consideration for Ex. A was reserved with the plaintiffs for payment to defendant 1 in respect of the decree that she had obtained. The plaintiffs did not, however, make any payment. The result was that defendant 1, in execution of the decree which she obtained, purchased the property and got delivery through Court. The plaintiffs intervened under Order 21, Civil P.C. but their objections were not heeded to, with the result that defendant 1 obtained delivery of the properties in execution. The plaintiffs present suit is for declaration of their title and for cancellation of the delivery order.

(2.) Several defences were raised by defendant 1. The main defences were those covered by issues 2 and 3. Both the lower Courts held that the plaintiffs were bound to discharge the decree debt in O.S. No. 215 of 1914, and on that ground they held that the plaintiffs were not entitled to any relief. Having had that question fully discussed before me, I have come to the conclusion that defendant 1, not being a party to Ex. A, the plaintiff's sale deed, nor to the arrangement made between defendant 2 and her brother on the one hand and plaintiffs the vendees on the other, with reference to the payment of the decree amount, is not entitled to rely on the same, nor base any rights in her favour by virtue of a transaction to which she was not a party. Reading Ex. A, I am not able to find that the plaintiffs undertook with defendant 1 to discharge the decree amount. No doubt, the amount was reserved with them by defendant 2 and her brother, and they would have their own remedies against the plaintiffs if the plaintiffs did not act according to the terms of the agreement entered into by them with defendant 2 and her brother. So far as defendant 1 is concerned, I am clearly of the opinion that she is not entitled to take advantage of the arrangement mentioned in Ex. A. The learned Counsel for the defendant 1, however, drew my attention to para. 4 of the written statement filed by defendant 1 in which it is alleged that the properties belonged really to defendant 2, and that for a debt due by Muhammad Hussain defendant 2 executed the mortgage deed to defendant 1 and that the brother of defendant 2 also attested the said mortgage. He drew my attention to the fact that issue 2 was specifically raised with reference to the said allegation in the written statement, and that the lower appellate Court had not recorded any finding on issue 2. I think that, before I finally dispose of the appeal, it is necessary to have a definite finding on the point covered by issue 2 on the evidence on record. I accordingly call upon the lower appellate Court to record a finding on issue 2, and the finding should be submitted within one month after the reopening of the lower appellate Court: 7 days will be allowed for objections.

(3.) The case was very fully discussed before me, and I think it is proper that I should record my impressions, in case the finding on issue 2 should be ultimately against defendant 1. It was argued that, because defendant 1 purchased the whole of the properties in suit by virtue of the decree in the mortgage suit and got possession of the same the plaintiff's only remedy would be to file a suit for partition and that the plaintiffs would not be entitled to any relief in the suit as framed. No doubt, in case it be found on the question of estoppel that the plaintiffs are estopped from setting up their claim to the suit properties, and from contending that the mortgage to defendant 1 is not binding upon them, then the plaintiffs would not be entitled to any relief at all. If, however, the finding on the issue of estoppel is in favour of the plaintiffs, then, I think the proper relief that should be given to the plaintiffs in this case would be to give plaintiffs joint possession along with defendant 1 and modify the delivery order to defendant 1 accordingly, with liberty to the plaintiffs and defendant 1 to work out their rights in the properties by a suit for partition.