1. This is a plaintiff's appeal and arises under the following circumstances: The plaintiff. Pairey Lal, is the son of one Bhoj Raj. The latter had two houses. His brother, Mangal Sen, mortgaged a house that belonged to him to Mewa Ram on the 6th August 1904, The northern boundary of Mangal Sen's house was given in the deed as the houses of Bhoj Raj and Hatta Mal. In execution of a decree obtained by Mewa Ram on foot of this mortgage, Durga Das purchased the house. Bhoj Ram entered into a contract with Durga Das to transfer the house to him Eventually a suit was brought by Bhoj Raj for specific performance of the contract of sale, and he obtained a decree on the 2nd May 1905. In this decree the northern boundary of the house is shown as the house of Hatta Mal and Bhoj Raj.
2. Bhoj Raj mortgaged the same house to Mewa Ram on the 16th January 1906 and in this mortgage the northern boundary of the house mortgaged is shown as the houses of Hatta Mal and Bhoj Raj. Mewa Ram obtained a decree on foot of his mortgage, and in both the preliminary and the final decrees the northern boundary of the house was shown as the house of Bhoj Raj and that of Hatta Mal. To that suit the plaintiff was a party, although a minor. In execution of this decree one of the houses of Bhoj Raj was put up for sale and bought by the predecessor-in-interest of the respondent on the 5th May 1909; but both in the sale proclamation as well as in the sale certificate the northern boundary of the house sold was given as the house of Hatta Mal.
3. On the 30th July 1909, the predecessor-in-interest of the respondent took possession of the two houses of Bhoj Raj. The plaintiff's case was that, when he was a minor of tender years, his lather left for Calcutta and took him there along with the other members of his family. His father died about eight years before the suit in Calcutta and the plaintiff was still a minor. When he 'matured in senses,' he came to know that his father's house was at Aligarh; and at Aligarh on enquiry he found that the defendant had taken possession wrongfully of a house which was the joint property of his father and himself. He therefore claimed possession of the property and mesne profits. I may mention that Bhoj Raj, as a matter of fact had two houses which he had got from his father and the house which was mortgaged was a house which had been given to his brother, Mangal Sen, by his father. The correct description of the northern boundary of the house, which was mortgaged, would be the house of Bhoj Raj and the house of Hatta Mal. From the map filed and admitted it would appear that to the north of the house of Bhoj Raj and Hatta Mal there is another house of Hatta Mal, and the claim relates to the ancestral house of the plaintiff, the northern and eastern boundaries of which are the houses of Hatta Mal.
4. The defendant contested the suit on the ground that the plaintiff had no cause of action, that the suit was barred by time and by Section 41 of the Transfer of Property Act. He further pleaded that the principle of estoppel by acquiescence barred the suit. The Court of first instance came to the conclusion that the disputed house had never been mortgaged and was clearly distinguishable from the mortgaged house, and that it was a separate and compact house and not a part of the house that had been mortgaged. It also came to the conclusion that the preliminary and the final decrees obtained by Mewa Ram on his mortgage clearly distinguished this house from the mortgaged house, and that when executing the decree Mewa Ram omitted to describe the house in suit as the northern boundary of the house, and he mentioned only the house of Hatta Mal as the northern boundary of the house. Holding that the possession of the respondent and his ancestor was without right, it granted a decree to the plaintiff on the ground that the plaintiff had a right to dispossess trespassers. As regards the question of limitation, which was raised, he accepted the plaintiff's evidence as sufficient, and held that he was about 19 years and 5 or 6 months old at the time of instituting this suit and therefore the suit was not barred by limitation. It held that Section 41 did not bar the suit and granted a decree for mesne profits.
5. The defendant went up in appeal before the learned Judge, who held that the plaintiff-respondent was not entitled to recover possession of the house, which was sold by public auction in execution of the decree and that if any property was taken by the decree-holder in excess of his decree the plaintiff who was a judgment-debtor was bound to apply under Section 47 of the Civil P.C. and he could not institute a separate suit for the recovery of such property. He, there fore dismissed the plaintiff's suit.
6. The plaintiff has come up in second appeal, and it has been argued by the learned vakil for the appellant that Section 47 was no bar to a suit instituted against an auction-purchaser, who was not a decree-holder, by one of the judgment-debtors. In support of this contention he has relied on the case of Imtiaz unnissa v. Chuttan Lal : AIR1925All236 . He has also referred to a number of rulings of this Court, viz., Bhagwati v. Banwari Lal (1909) 31 All 82 and Munna Lal v. Collector of Shahjahanpur AIR 1928 All 470, respectively. I am bound by these rulings. I have therefore, come to the conclusion that the suit is not barred by Section 47 of the Civil P.C. The learned advocate for the respondent has argued that the plaintiff is estopped from suing the auction-purchaser or his representative, as he was a party in proceedings in execution as between Bhoj Raj and Durga Das and those proceedings were finally as between the decree-holder and a judgment-debtor on the one side and the auction-purchaser on the other. I am unable to accept this contention. He has further argued that the Court below has found as a fact that the sale was of both the houses and the finding of the lower appellate Court amounts to this, that both the houses were mortgaged. I am unable to accept this argument, as it is perfectly clear from both the preliminary and the final decrees that nothing more was ordered to be sold than a house which was the house of Mangal Sen, and the house in question was neither mortgaged nor could have been sold. If there is an ambiguity in the sale proclamation, to see what was actually sold, we have to go to the decree and the decree is perfectly clear to my mind on this point.
7. It was further argued by the learned advocate for the respondent that the, learned Judge in any event has found that the plaintiff was more that 22 years on the date of this suit and if under colour of a Court proceedings an auction-purchaser wrongly takes more property than was decreed or sold, Section 6 of the Limitation Act has no application, because the minor was duly represented in those proceedings, and the suit not having been filed within 12 years from the date of those proceedings, viz., the 30th July 1909, no extension of time can be granted to the plaintiff. I am of opinion that Section 6 of the Limitation Act is perfectly clear on the point, and there is no force in the contention of the advocate for the respondent. The learned Judge of the lower appellate Court, in my opinion did not find anything because in view of his finding, that the suit was not Maintainable by reason of the fact that an application under Section 47 had already been filed, he did not consider or discuss the whole evidence. He no doubt, says:' In May 1908 the plaintiff's age was given as eight years.' This is a statement made by a person who has instituted a suit against the plaintiff and who neither had any special means of knowledge nor was he called as a witness in this case. It is therefore, impossible to say what the Court below meant by that sentence.
8. The case was disposed of on a preliminary point by the learned Judge; but I am of opinion that the suit is Maintainable. I therefore, remand the case under Order 41, Rule 23, Civil P.C. and direct the Court below to re-admit the appeal under its original number in the register and proceed to determine the appeal according to law. Costs here and heretofore will abide the result and will include fee in this Court on the higher scale.