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Shrinivas Narayan Prabhu Vs. Shiddika MaidIn Saiba - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 62 of 1924
Judge
Reported inAIR1925Bom413; (1925)27BOMLR931
AppellantShrinivas Narayan Prabhu
RespondentShiddika MaidIn Saiba
DispositionAppeal dismissed
Excerpt:
.....1909 to recover possession of the property ho was obstructed by defend, ant no. 1. m immediately filed a suit be recover possession of the property from defendant no. 1. to this suit, plaintiff was not made a party. defendant no. 1 did not resist the suit and m obtained a decree for possession. in 1921 the plaintiff sued on his mortgage :-;that no order having been made to prevent defendant no. 1 from disposing of the property pending the decision of any suit that m might tile to establish his title, the plaintiff was entitled to a decree on his mortgage.;semble.-if proceedings had actually been taken under order xxi and an order had been made in favour of defendant no. 1 that would not be conclusive if m had file i a suit within one year from the date of the order; and m would be..........had brought a suit against dev naik and obtained a money decree, in execution of which the suit property was sold by the court and was purchased by one mallappa in 1905. on june 15, 1909, defendant no. 1 mortgaged the property to the plaintiff. when mallappa attempted to take possession of the property which he had purchased at the court-sale, he was obstructed by the first defendant. on july 1, 1909, mallappa filed a suit to recover possession. on these bare facts it is clear that the plaintiff had a good title for his mortgage against the auction purchaser. it is suggested now that there had been an order by the court on a claim presented under order xxi, civil procedure code, by mallappa. if proceedings had actually been taken under order xxi, and an order had been made in.....
Judgment:

Norman Macleod, Kt., C.J.

1. The property in suit originally belonged to one Dev Naik. He sold it on October 14, 1902, to defendant No. 1, In the meantime the father of the present fifth defendant had brought a suit against Dev Naik and obtained a money decree, in execution of which the suit property was sold by the Court and was purchased by one Mallappa in 1905. On June 15, 1909, defendant No. 1 mortgaged the property to the plaintiff. When Mallappa attempted to take possession of the property which he had purchased at the Court-sale, he was obstructed by the first defendant. On July 1, 1909, Mallappa filed a suit to recover possession. On these bare facts it is clear that the plaintiff had a good title for his mortgage against the auction purchaser. It is suggested now that there had been an order by the Court on a claim presented under Order XXI, Civil Procedure Code, by Mallappa. If proceedings had actually been taken under Order XXI, and an order had been made in favour of defendant No. 1, that would not be conclusive if Mallappa had filed a suit within one year from the date of the order, and Mallappa would be entitled to prosecute his suit against not only defendant No. 1 but any one deriving title after the order had been made from defendant No. 1. That was decided in Krishnappa Chetty v. Abdul Khader Sahib.(1) But in this case we are not informed that any order had been made which would prevent defendant No. 1 from disposing of the property pending the decision of any suit that Mallappa might file to establish his title. That being so, the District Judge was right in holding that the plaintiff was entitled to a decree on his mortgage. The appeal is dismissed with costs.


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