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Pirthi Nath and anr. Vs. Mt. Kunji Kunwar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All41
AppellantPirthi Nath and anr.
RespondentMt. Kunji Kunwar and anr.
Excerpt:
- - indeed, that decree was the best authority there could possibly be for the purpose of determining what those properties were at that time......obtained by seth prem narain on the basis of a mortgage on 13th march 1918. the respondent, mt. kunji kunwar, had a mortgage on certain of the properties in suit. it was provided in the decree that those properties in which she was interested should be sold after the remaining properties. no detail of the properties referred to was given in the decree. mt. kunji kunwar had however brought a suit on the basis of her own mortgage, and shortly afterwards, namely, on 29th may 1918, she obtained a decree. that decree was in respect of five properties, and the two properties now in dispute, namely, shampur and karimpur alias dhakur, were not included in it. there was an appeal to the high court, but in the appellate decree the same properties were specified. on 19th may 1922, after the.....
Judgment:

Daniels, J.

1. This is an appeal against an order setting aside a sale. The appellants are the decree-holders. The decree under execution was obtained by Seth Prem Narain on the basis of a mortgage on 13th March 1918. The respondent, Mt. Kunji Kunwar, had a mortgage on certain of the properties in suit. It was provided in the decree that those properties in which she was interested should be sold after the remaining properties. No detail of the properties referred to was given in the decree. Mt. Kunji Kunwar had however brought a suit on the basis of her own mortgage, and shortly afterwards, namely, on 29th May 1918, she obtained a decree. That decree was in respect of five properties, and the two properties now in dispute, namely, Shampur and Karimpur alias Dhakur, were not included in it. There was an appeal to the High Court, but in the appellate decree the same properties were specified. On 19th May 1922, after the decision of the appeal, Prem Narain applied for execution of his decree. On 21st February 1923, the sale was actually held. Mt Kunji Kunwar had been given notice of the sale proceedings and did not appear or take any objection to the order in which the properties were sold. At that sale the properties now in dispute were sold along with the properties in which Mt. Kunji Kunwar was not interested, and the sale was not postponed until all those properties had been sold. This is the ground of Mt. Kunji Kunwar's objection which has been accepted by the Court below. A week after the sale the objections to the sale were made by Mt. Kunji Kunwar alleging that the properties had been sold contrary to the terms of the decree. Some time between this date and 14th April 1923, she applied for amendment of the decree in the High Court. On the date just mentioned she put in an application to the execution Court saying that she had applied for amendment of the decree and asking that the decision of her objections be postponed. The exact date of the amendment of the decree is not before us, but on 27th May 1924, Mt. Kunji Kunwar filed a copy of the amended decree in which the two properties now in dispute were included.

2. The learned Subordinate Judge has allowed the objection on the ground that the sale was contrary to the terms of the decree, but has not considered the effect of the sale having been held in accordance with the terms of Mt. Kunji Kunwar's decree as it stood on the date when the sale was held. The respondent's learned Counsel has urged that there is nothing to show that the execution Court, in arranging the order of the sales, had that decree before it, but we think that we are justified in inferring this. It is certainly a very striking coincidence that just the properties which were omitted from Mt. Kunji Kunwar's decree should have been treated as properties in which she had no interest. The appellants' learned pleader relies on the decision of the Privy Council in Zainul-Addin Khan v. Muhammad Asghar Ali Khan (1) which was followed by this Court in Piari Lal v. Hanifunnissa Bibi (2). Their Lordships laid down in this case that when a sale takes places in execution of a decree in force at the time, it cannot be set aside against a bona fide purchaser on the ground that the decree has subsequently been reversed in appeal. The respondents' learned Counsel concedes that, if it had been Prem Narain's decree, which had been subsequently amended, the principle of the Privy Council ruling would have applied. He contends that because it was another decree, namely, Mt. Kunji Kunwar's decree, which was amended, the case is distinguishable and the sale has rightly been set aside. In our opinion, the same principle applies in both cases.

3. The execution Court was justified in interpreting Prem Narain's decree, in which no specification of the properties were given, in the light of Mt. Kunji Kunwar's decree which specified the properties on which she had a charge. Indeed, that decree was the best authority there could possibly be for the purpose of determining what those properties were at that time. The appellants in this case are bona fide purchasers who were not parties to the proceedings. We think there fore that they are entitled to the benefit of their purchase, and that the Court was wrong in setting it aside. The sale was in accordance with the decree as it stood in the light of the decree obtained by Mt. Kunji Kunwar herself and therefore the validity of the sale is not done away with by the fact that decree was afterwards amended.

4. We accordingly allow the appeal; dismiss Mt. Kunji Kunwar's objections in regard to these two villages, namely, the villages of Shamspur and Karimpur alias Dhakur, and confirm the sale in respect of them. The appellants will get their costs both in this Court and in the Court; below. Costs in this Court will include fees on the higher scale.


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