1. This is the plaintiffs' appeal against the appellate decree of Mr. Tribeni Prasad, Civil Judge, Bahraich dated 22-7-1944.
2. The plaintiffs stated that more than 20 years before the date of the suit, their father Mata Din and his five sons including 4 plaintiffs and defendant 2 Misri Lal, had a private partition of their property whereby their father gave up all his interest in family property which accordingly was equally divided between 5 sons. In 1920, defendant l fraudulently obtained a mortgage-deed from their father and their brother Misri Lal, defendant 2, in respect of the property in list B (NOS. 243, 275c) and that this mortgaged property has no connection whatsoever with the property in list A (NOS. 235, 257, 287 and 288).
On the basis of this mortgage-deed, defendant 1 filed a suit for sale in May 1937. In this suit, the plaintiffs as their father was dead, were impleaded as his legal representatives. The plaintiffs filed written statement claiming paramount title in respect of 4/5ths of the mortgaged property. No issue was, however, framed on this paramount title. The suit was decreed in October 1937 and an appeal against the preliminary decree was dismissed on 31-3-1938. A final decree was obtained in 1941 and in execution of the decree the plaintiffs objected under Section 47, Civil P. C. Their objection was dismissed in 1942.
The plaintiffs alleged that they feared that the executing Court might sell their property thinking that the property in lists A and B was the same, that in any case even if it be so, they had their right of ownership in respect of 4/5ths share in the property and thus it is not saleable in execution of the mortgage decree. They accordingly prayed for a declaration that the properties in lists A and 33 are entirely different and that in any case they have 4/5ths share in the properties in the lists A and B and that it cannot be attached or sold in execution of the mortgage decree. The suit was contested on various grounds and one of them with which we are concerned now in appeal was that the claim of the plaintiffs could have been decided only under Section 47, Civil P. C., and a separate suit, therefore, was not maintainable. The learned trial Court thought that the claim of paramount title sought to be agitated in suit was a question relating to execution, discharge or satisfaction of the decree between parties to the suit and therefore the present suit was not maintainable. The suit was accordingly dismissed. The plaintiffs went up in appeal and the learned lower appellate Court has also agreed with the trial Court and accordingly the appeal was dismissed.
3. In the present appeal it is urged that both the Courts below have gone wrong in thinking that the claim made by the plaintiffs raised a question relating to satisfaction, discharge or execution of the decree, that in fact their claim challenged the very validity of the mortgage decree and therefore such a question could not have been decided in execution proceedings under Section 47, Civil P. C. I have heard the learned counsel and am satisfied that this contention must prevail.
4. Admittedly the plaintiffs were impleaded in the mortgage suit as legal representatives of their deceased father who was one of the mortgagors. In that capacity they could not possibly set up their paramount title against the mortgagor and the mortgagee. It is settled law that a person setting up a title paramount to that of the mortgagor and the mortgagee should not be joined as party in the mortgage suit for he is neither interested in the mortgage security nor in the rights of redemption ... see Nilkanth Banerji v. Suresh Chunder, 12 Ind. App. 171 (P. C.) and Radha 'Kunwar v. Reoti Singh, 43 Ind. App. 187 (p. C.). In Gobardhan v. Manna Lal, 40 ALL. 584, it has been held that in a suit brought by a mortgagee to enforce his mortgage, a person claiming a title paramount to that of the mortgagor and the mortgagee is not a necessary party, and the question of paramount title could not be litigated in such a suit. It follows that even if title paramount had been set up in the suit of 1937 as in fact it was, it would have been unnecessary to decide it in that suit. In point of fact no issue on title paramount was framed or decided.
5. The plaintiffs' claim in the present suit was that they were the owners of 4/5ths of the mortgaged property and the original mortgagors their father and their brother defendant 2 were not competent to make the mortgage and therefore the decree was one which ought not to have been made. The question raised was not one relating to execution, discharge or satisfaction of the decree but the very validity of the decree in execution was challenged. This is amply supported by Ramaswamy Chettyar v. U Tun Tha A. I. R. 1940 Rang. 161.
In that case the mortgagee after the passing of the final decree applied for sale. During the pendency of the proceedings, the mortgagor died. His legal representative who was brought on the record then raised an objection to the sale on the ground that the mortgaged property belonged solely to him and the mortgagor had no right, title or interest therein. It was held that the objection did not fall under Section 47, Civil P. C., and the objection being to the validity of the decree itself proper remedy was by way of separate suit. Reliance was placed on Sanwal Das v. Bismillah Begum, 19 ALL. 480; Liladhar v. Chaturbkuj, 21 ALL. 277; Jagar Nath Singh v. Shiv Ghulam Singh, 31 ALL. 45 and Tirumiraju Bahadur Deva v. Makant Dossji Varu, 32 Mad. 429.
The learned Judge quoted a passage from Sanwal Das v. Bismillah Begum, 19 ALL. 480 wherein was pointed out the difference between the proceedings of sale in a simple money decree and the proceedings of sale in a mortgage-decree. It, was pointed out that in selling the property under a simple money decree the Court has to enquire whether the property attached is the judgment-debtor but
'where, however, the decree is a decree for sale under the Transfer of Property Act now Order 34, Civil P. C., the Court executing the decree must sell the property described to be sold and leave any one objecting to the execution of the decree against that particular property to such remedy as he may have by a suit or by resistance to the possession of the purchaser.'
In Hamidgani v. Ammasahib A. I. R. 1941 Mad. 398, a Full Bench of the Madras High Court approving Tirumalraju Bahadur Deva v. Mahant Dossji Faru, 32 Mad. 429 which was relied on in Ramaswamy Chettyar v. U Tun Tha, A. I. R. 1940 Rang. 161 held that a person who has been brought into Court in proceedings in execution of a mortgage-decree merely as the legal representative of the judgment-debtor is not compelled to have his own claims to the property in suit decided in the execution proceedings and he can establish his rights by a separate suit. It was also pointed out that in execution proceedings arising out of money-decrees, questions relating to property attached stand on an entirely different footing as they do not call into question the correctness of the decree.
6. For respondents reliance was placed on Niam Ata v. Girdhari Lal, A. I. R. 1927 oudh 120; Lackhoo v. Firm Munni Lal Babu Lal : AIR1935All183 Imliaz Bibi v. Kabia Bibi, 61 ALL. 878; Dulla v. Shib Lal, 39 ALL. 47; Piara Lal v. Kishan Lal : AIR1928All704 and Ghhettiar S. E. M. M. R. M. Firm v. Tea Ee San A. I. R. 1927 Rang. 273. The first four cases all related to money decrees in which legal representatives of the judgment-debtor claimed attached property to be his and not of the original judgment-debtor and it was held that such a question relates to execution, satisfaction or discharge of the decree under Section 47, Civil P. C.
Piare Lal v. Kishan Lal : AIR1928All704 related to a mortgage-decree and there, legal representative of the transferee of a portion of the mortgaged property who himself was a party to the suit claimed his paramount title by purchase and said that the property sought to be sold was not included in the mortgage-decree. His objection was examined and dismissed under Section 47, Civil P. C. The person then filed a suit for declaration of his title. It was held that no suit lay. It is clear from the facts of this case that the validity of the decree itself was not challenged and so the question clearly was of Section 47, Civil P. C.
Chettiar S. R. M. M. R. M. Firm v. Teo Ee San, A. I. R. 1927 Rang, 273 was also the case of a personal decree and not of a mortgage-decree in which the legal representative of the deceased judgment-debtor raised an objection to the attachment of some property of the deceased in his possession and it was held that the objection claiming paramount title should be decided under Section 47, Civil P. C., and not by a separate suit. Authorities, therefore, relied upon by the Courts below and respondents are those in which the validity of the decree was not in question.
7. It is clear that the claim of the plaintiffs in the present case questions the validity of the mortgage-decree itself in respect of the mortgaged property and such a question is clearly beyond the scope of Section 47, Civil P. C., and can be decided by a suit. Accordingly I allow this appeal, set aside the decree passed and direct that the suit shall be readmitted to its original number and shall be disposed of on merits according to law. Costs shall abide the result.