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Sukhlal Rai and ors. Vs. Lachmi Narayan Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All419; 40Ind.Cas.888
AppellantSukhlal Rai and ors.
RespondentLachmi Narayan Rai and ors.
Excerpt:
execution - decree, construction of--mortgage--executing court, powers of. - - it is, therefore, quite clear, as the partition had taken place prior to the execution of the mortgage deed, that the parties to the deed knew perfectly well what the share of the mortgagor was......in execution of their decree the mortgagees applied for the sale of a four-anna share in mahal gaya prasad in each of the four villages, stating that the description of the property given in the mortgage-deed as eight gandas came to four annas in mahal gaya prasad in each village. the judgment-debtors filed objections. they said that a partition among the co-sharers of the four villages had taken place as long ago as 1896 and it came into operation from the 1st of july 1897, some eight months prior to the execution of the mortgage in suit. the share of gaya prasad rai before partition was eight gandas in each village; but subsequent to the partition, after formation of fourteen mahals, the share of gaya prasad was described as four annas in mahal gaya prasad in each village. it must,.....
Judgment:

1. This appeal arises out of the following facts. One Gaya Prasad Rai was a co-sharer in four villages to the extent of eight gandas. On the 2nd of April 1898 he executed a deed of mortgage in respect of his eight-gandas share in the villages in favour of Ram Bachan and Jagat Rai. The mortgagees brought a suit on the mortgage and obtained a decree for sale. In execution of their decree the mortgagees applied for the sale of a four-anna share in Mahal Gaya Prasad in each of the four villages, stating that the description of the property given in the mortgage-deed as eight gandas came to four annas in Mahal Gaya Prasad in each village. The judgment-debtors filed objections. They said that a partition among the co-sharers of the four villages had taken place as long ago as 1896 and it came into operation from the 1st of July 1897, some eight months prior to the execution of the mortgage in suit. The share of Gaya Prasad Rai before partition was eight gandas in each village; but subsequent to the partition, after formation of fourteen mahals, the share of Gaya Prasad was described as four annas in Mahal Gaya Prasad in each village. It must, therefore, be taken that what Gaya Prasad mortgaged under the deed of the 2nd of April 1898 was not his entire share of four annas in Mahal Gaya Prased in each village, but only eight gandas out of the entire four annas, that is to say, ore-tenth of the original share in each village. The Court of First Instance purported to allow this objection, but as a matter of fact ordered sale of eight, gandas in each village without any addition.' This would involve the selling of 1/40th share of the proprietary rights in each village which would be really what the decree-holders wanted. On appeal the case was put by the learned Judge in a clearer way for the objectors, i.e., judgment-debtors. But the learned Judge upheld the decree of the First Court. The decree-holders have come up to this Court in second appeal and contend that the order of the lower Courts is likely to mislead the intending purchasers or bidders at the auction and to lead to further litigation. For the judgment-debtors it is urged that the decree-holders cannot go behind the decree and they are bound by its terms. They cannot sell any other property than that which is mentioned in the decree. The decree directs the sale of the mortgaged property as it is described in the mortgage-deed of the 2nd of April 1898. The description in the deed is eight gandas in each village. It is, therefore, quite clear, as the partition had taken place prior to the execution of the mortgage deed, that the parties to the deed knew perfectly well what the share of the mortgagor was. The mortgagees, if they meant to take the entire share of the mortgagor as security, would have got four-annas share in Mahal Gaya Prasad in each village entered in the deed. In their plaint the mortgagees did not say that the property mentioned in the mortgage-deed was the same as four annas share in Mahal Gaya Prasad in each village, nor did they bring this fact to the notice of the Court at the time of the passing of the decree. It must, therefore, be taken that all that was mortgaged was eight gandas out of the share of Gaya Prasad. We do not think that there is any force in the contention for the judgment-debtors. On a reference to the deed of mortgage of the 2nd of April 1898 it is quite clear that Gaya Prasad mortgaged his entire share which he described as eight gandas in each of the four villages. Probably Gaya Prasad and other co-sharers had not by that time become quite familiar with the description of their shares as brought about by the partition of 1896 and consequently the old description found place in the mortgage-deed. The decree naturally followed the description given in the mortgage-deed. We have to find cut what property ought to be sold in execution of this decree. We have no hesitation in holding that the property directed by the decree to be sold is the entire share of Gaya Prasad, which after partition is described as four annas in Mahal Gaya Prasad in each village. We allow this appeal and direct that in execution of the decree in question the sale of four-annas share of Gaya Prasad in Mahal Gaya Prasad in each village be proclaimed. The Appellants are entitled to their costs here and in the Court below.


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