Knox, Actg. C.J. and Blair, J.
1. The suit out of which this appeal arises has reference be a certain share of property which-will in this judgment be referred to hereafter as share A. This share A is a share in mauza Gummawala, which belonged to Sri Ram, one of three brothers.
2. Sri Ram's brother, Nagar Mal, held a second share, which will be hereafter styled share B. A third brother, Sohan Lal, hold a share, which will be described as (c/1 plus c/2).
3. Sohan Lal was succeeded by his son, Shankar Lal. Nagar Mal and Shankar Lal borrowed monies from one Bansi Lal, and as security mortgaged in his favour share B and (c/1 plus c/2).
4. Shankar Lal died and his property passed by succession thus: c/1 Sri Ram, c/2 to Nagar Mal. In execution of a decree against Nagar Mal, c/2 was sold and purchased by Kondo Mai, one of the respondents to this appeal. Kondo Mai is heir to Sri Ram, and thus held both the shares A and (c/2 plus c/1).
5. Bansi Lal, however, brought a suit upon his bond and impleaded only Kondo Mai as the representative of his original mortgagors. Kondo Mai defended the suit, but apparently overlooked the fact that share A, or a portion of it, was included among the proporty sued for. Share A is not, and never was, included in the bond upon which Bansi Lal sued, and was not therefore property over which the bond held by Bansi Lal and upon which he sued created any charge or lien of any kind.
6. The judgment which was given in favour of Bansi Lal ran thus in its concluding Clause: 'that a decree be given to the plaintiff for Rs. 10,349-4-6 against the hypothecated estate, except that portion of it which is in the hands of Murli Lal and Lachmi Chand - i.e., share B.' From the concluding words of the judgment and from other passages in it, it is evident that the intention of the Court was to grant a decree over the balance of the property hypothecated, and only that, viz., c/1 plus c/2 share B being expressly excepted by name.
6. In the decree the property affected is described as the property specified in the plaint and as modified, to wit, by the exception of share B. Bansi Lal died and was succeeded by Ram Chander, the present appellant. He applied for an order absolute, and into this order absolute came the order for sale of share A, or a portion of it, as well as of share c/1 plus c/2. Ram Chander purchased.
7. Kondo Mai then instituted the suit out of which this appeal has arisen to recover the portion of share A which has been sold, on the ground that as it was never hypothecated, it could not have been included in the decree and could not have been sold.
8. The Court of First Instance dismissed the suit on the ground that it was barred by Section 13 of the Code of Civil Procedure. Kondo Mai should, in the judgment of the learned Munsif, have raised as part of his defence to the suit that no part of share A was ever hypothecated.
9. The learned Subordinate Judge overruling this decision, has remanded the case for a decision upon the merits, and it is from this order that the present appeal has been brought.
10. We agree with the learned Subordinate Judge that the Court which heard the first suit never intended to give a decree over any property other than that hypothecated, and that where the decree says 'the property specified in the plaint' is meant, and must be held to mean, the hypothecated property mentioned in the plaint. The order absolute under Section 89 could not run against any property over and above that against which the decree under Section 88 ran. The present suit is concluded neither by Section 13 or Section 244 of the Code of Civil Procedure. To hold otherwise would not only be an act of injustice, but it would be permitting the plaintiff to take advantage of what he must know to be a piece of sharp practice, more than that, of fraud.
11. We dismiss this appeal with costs.