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Bhabhuti Rai and ors. Vs. Harbans Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All116; 25Ind.Cas.1
AppellantBhabhuti Rai and ors.
RespondentHarbans Rai and ors.
Excerpt:
mortgage - mortgagor's right sold at auction--suit for sale on mortgage without impleadihg vendee--subsequent suit to eject mortgagor's vendee--cause of action. - .....decree for sale was obtained on foot of this mortgage against the-mortgagors. in execution of this decree a sale took place on june the 20th, 1908, when the decree-holders themselves purchased it. on endeavouring to obtain possession the plaintiffs found themselves resisted by the present defendants, who held under a sale-deed dated september the 22nd, 1902, from one oma nath. this oma nath had obtained a simple money decree against the original mortgagors, in execution of which he attached this same property, brought it to sale and purchased it himself on may the 20th, 1901. the original mortgage of the 7th of june 1900 was not registered and there was no presumption that oma nath had knowledge of its existence. at any rate he purchased whatever right, title, or interest the original.....
Judgment:

Piggott, J.

1. This was a suit for possession of a certain zemindari share to which the plaintiffs acquired title as follows: There was a mortgage dated June the 7th, 1900, by the proprietors of the share in favour of the plaintiffs' ancestors. On June the 3rd, 1904, a decree for sale was obtained on foot of this mortgage against the-mortgagors. In execution of this decree a sale took place on June the 20th, 1908, when the decree-holders themselves purchased it. On endeavouring to obtain possession the plaintiffs found themselves resisted by the present defendants, who held under a sale-deed dated September the 22nd, 1902, from one Oma Nath. This Oma Nath had obtained a simple money decree against the original mortgagors, in execution of which he attached this same property, brought it to sale and purchased it himself on May the 20th, 1901. The original mortgage of the 7th of June 1900 was not registered and there was no presumption that Oma Nath had knowledge of its existence. At any rate he purchased whatever right, title, or interest the original mortgagors had in the property now in suit, so that when the mortgagors brought their suit in the year 1904 they were impleading as defendants persons who had no longer any title to the property in question. As holders of a simple mortgage they have no right to actual possession over this property, and the defendants, certainly cannot be prejudiced by the result of the litigation to which they ought to have been made parties but were not. The suit for posession as brought was obviously liable to be dismissed, and if authority were needed for such a proposition it is to be found in two decisions of this Court Hargu Lal Singh v. Gobind Rai 19 A. 541 : A.W.N. (1897) 154 and Madan Lal v. Bhagwan Das 21 A. 235 : A.W.N. (1899) 41. These are both Full Bench decisions and am bound to follow them. In the present case the Court of first instance, the learned Munsif, gave the plaintiffs a decree for recovery of possession subject to the right of the defendants to protect themselves by redemption of the original mortgage of 7th June 1900, that is to say, by paying to the plaintiffs a sum found to be due in respect of that mortgage. The lower Appellate Court has held, in the first place, that the plaintiffs were not entitled to any such decree; and, in the second - place, that neither such a conditional decree as has been passed by the Court of first instance, nor a decree for sale upon the mortgage to which the plaintiffs would presumably be entitled if they had asked for it, could be passed on the pleadings as they stood. I have been asked to reverse this decision partly on the strength of the Calcutta case Jugdeo Singh v. Habibulla 12 C.W.N. 107 : 6 C.L.J. 612 and partly on the strength of an unreported decision by a single Judge of this Court in Second Appeal No. 763 of 1911 decided on June the 18th, 1912. The case the facts of which are more nearly on all fours with those of the present case is that of Ram Prasad v. Bhikari Das 26 A. 464. Many of the facts of that case bear close similarity to those of the case now before me, and it ended in a decree very similar to that which was passed in the present case by the learned Judge of the first Court, who has in fact referred to this ruling and professed to follow it. There is one distinction between the two cases on the facts, namely, that in Ram Prasad v. Bhikari Das 26 A. 464 a mortgage decree had been obtained before the auction sale in execution of the simple money decree took place. Moreover, in that case the pleadings were different. The plaintiffs sued for payment of the amount duo under the 'mortgage, or in default for possession. That suit, therefore, did not profess on the face of it to be a simple suit for ejectment, as does the one now before me. In both the Full Bench cases to which I have already referred stress was laid on the fact that in a suit which purports on the face of it to be a suit for ejectment what the Court has to consider is: whether the plaintiff had any title to possession on the date on which he brought the suit. The question of pleadings was expressly considered in both these cases and it was on the ground of the frame of the suit in the case then before them that the learned Judges proceeded to decide the case of Ram Prasad v. Bhihari Das 26 A. 464. It has been suggested in argument that the law has been changed by the enactment of Order VII, Rule 7, of the present Code of Civil Procedure. The earlier part of that rule only lays down in clear and stringent terms the duty of the plaintiff with regard to the framing of his plaint. The second part of the rule only makes it unnecessary to append to a plaint a prayer for general relief, such as is to be found in the plaint now before- me. I do not think there has been any change in the law such as to affect the authority of the two Full Bench decisions which have been followed by the lower Appellate Court and I feel bound to follow them myself. The result is that I dismiss this appeal with costs: including in this Court fees on the higher scale.


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