1. This is the defendant's second appeal against the appellate decree of Mr. Mohammad Tufail Ahmad, Additional Civil Judge of Lucknow, dated 26th January 1944.
2. It would appear that the plaintiff respondent purchased from one Jagannath a certain house by a sale deed dated 9th March 1908. The eastern boundary, which is material for purposes of the appeal, was described as 'deewar makan haza mulhiq ba bagh.' The plaintiff gifted this house to his wife. The plaintiff and his wife both then mortgaged the house to Munnu Lal on 22nd October 1926 (EX. 3). The eastern boundary of the mortgaged house was now described as 'deewar makan haza mulhiq bagh jo ab rasta am hai.' In 1931 the plaintiff and his wife executed another mortgage of the very same property in favour of Behari Lal defendant 2. The eastern boundary was now described as 'rasta.' In all the three documents already referred to the other boundaries remained the same. It appears that in 1927 a portion of open land immediately to the east of the mortgaged house was purchased by the plaintiff from the municipal board. It also appears that after 1931 some time between 1932 and 1934 on this plot of land another house was built by the plaintiff. Behari Lal, the mortgagee of 1931, sued on his mortgage and obtained his decree. In execution of that decree the mortgaged property was sold and it was purchased by the appellant defendant 1. After the confirmation of sale the sale certificate EX. A-1, dated 20th July 1942, was issued in favour of the appellant, and in the sale certificate the property was described as 'ek qita makan pukhta do-manzila mae arazi waqai Mohalla Dugawan' and the eastern boundary was given as 'rasta' and the other boundaries corresponded with those given in the mortgage deed of 1931. When steps were taken to deliver possession of the property sold to the appellant the plaintiff obstructed and stated that under the sale certificate the appellant was entitled to receive possession of one house whereas the boundaries given in the sale certificate embraced in fact not one house but two houses and that he was willing to hand over possession of the 'do manzila' house which in fact was covered by the sale certificate and not of the other house immediately to the east thereof. The report of the person who had gone to deliver possession clearly stated that in fact within the boundaries given in the sale certificate two distinct houses were included whereas the purchaser was entitled to receive possession of only one house. The appellant was unable to obtain possession. Shortly thereafter the plaintiff filed a suit for a declaration that the second house situated immediately to the east of the 'do-manzila' house, which in fact had been sold at the auction, should be declared to be his property and not covered by the sale certificate.
3. The main defence of the auction-purchaser was that the sale certificate was his document of title and thereby he was told what was described within the boundaries, that both the houses were sold and that in fact they were only one house, that, in any case, a separate suit was not maintianable and the remedy of the plaintiff, if any, was in proceedings under Section 47, Civil P. C., and as they have not been taken he could not raise the present objection.
4. The learned trial Court found that the house in dispute was never mortgaged and had not been sold in execution of the mortgage decree and the sale certificate did not relate to it, that there was no estoppel at all, that Section 47, Civil P. C., had no application and a separate suit was maintainable. In the result the suit was decreed. In appeal the same objections were pressed again, but they were decided against the appellant.
5. In this appeal it has been urged that it was not open to the plaintiff to allege and prove in view of the clear terms of the sale certificate that the property in suit had not been sold to the auction-purchaser in view of the decision of their Lordships of the Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker, A. I. R. (9) 1922 P. C. 252: (44 Mad. 483). This contention, in my opinion, has no force. The case was one in which the terms of the sale certificate were very clear and there was no ambiguity whatever as to the property sold, and the property so sold was actually in existence and in possession of the judgment-debtors. In the present case the facts are entirely different. Here the description of the boundaries given in the sale certificate is such that it embraced in fact not one house which had been sold but two houses, and in view of the ambiguity created by the description it is open to the plaintiff to show as to which property was in fact covered by the sale certificate. . Their Lordships in the case just cited above have clearly laid down that it is only when there is no ambiguity in the words of the sale certificate that other evidence to determine what property was actually covered by the sale certificate shall not be looked into. There is in this case a concurrent finding of facts by both the Courts below that the mortgage of 1931 on the basis of which the mortgage decree was obtained and property put to sale covered exactly the same property as was mortgaged in 1925 and that the house in dispute was not even in existence either in 1925 or in 1931 but was built some time after 1932. The ambiguity or confusion has arisen because of the loose description given to the eastern boundary where originally there was a grove and thereafter in the course of 17 years or so a 'rasta' sprang up. I have no hesitation whatever in agreeing with the learned lower appellate Court that it is only because of the loose description of the eastern boundary that some doubt has arisen as to whether the disputed house was also covered by the sale certificate and that the evidence establishes it clearly that his house was not included in the sale certificate. The sale certificate clearly refers to one 'do-manzila' house and not to two houses and a 'do-manzila' house three boundaries of which correspond exactly with those given in the sale certificate does actually exist on the site.
6. Another ground of appeal is that the remedy of the plaintiff, if any, was by proceedings under Section 47, Criminal P. C., and not by a separate suit. 'This contention also cannot prevail. The dispute in this case was clearly one relating to the identity of the property sold and it cannot be said that the dispute was one which related to the execution, discharge or satisfaction of a decree. In Munna Lal v. Collector of Shahjahanpur, 45 ALL. 96; (A.I.R. (10) 1923 ALL. 470), it was doubted by the Bench whether a dispute about the identity of a property sold between a person, who had acquired the rights of a judgment. debtor, and the judgment-debtors can be entertained under Section 47, Civil P. C. The learned counsel for the appellant relied on Rahim Bakhsh v. Kishen Lal : AIR1939All368 , for the proposition that the only remedy of the plaintiff was under Section 47, Civil P. C. This case is clearly distinguishable from the present one. In this case in execution of the decree for sale of a certain mortgaged property obtained against the legal representatives of the mortgagor, certain property belonging personally to a legal representative of the mortgagor was also wrongly entered for sale as part of the mortgaged property and sold, and no objection was taken by the owner of the property as to the incorrect inclusion of the property at any time during the execution proceedings but a separate suit was filed later on and it was held that such a suit was barred and the remedy lay only under Section 47, Civil P. C., or Order 21, Rule 66 or 92, Civil P. C. As already pointed out, in the present case the dispute is only as regards the indentity of the property sold and not on the ground that any property has been incorrectly sold.
7. The result is that I find the decision of the learned lower Court to be correct and I accordingly dismiss the appeal with costs.