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The Hon'ble Rai Bahadur Pandit Sadanand Pandey Vs. Sheikh Tufail Ahmad and Anr. (02.11.1922 - ALLHC) - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All115; 79Ind.Cas.486
AppellantThe Hon'ble Rai Bahadur Pandit Sadanand Pandey
RespondentSheikh Tufail Ahmad and Anr.
Cases ReferredBhagwati v. Banwari Lai
Excerpt:
civil procedure code (act v of 1908),section 47 - mortgagee decree-holier purchasing property--suit for possession of property purchased--question relating to satisfaction of decree--suit whether barred. - - that question arose before the sale became effective what the plaintiff now asserts is that tufail ahmad and muhammad wasi bad obtained a mortgage of property, a large portion of which the mortgagor had no right to mortgage;.....the sale. what is the point in dispute there? it is this: what property could be sold under the mortgage decree? that question arose before the sale became effective what the plaintiff now asserts is that tufail ahmad and muhammad wasi bad obtained a mortgage of property, a large portion of which the mortgagor had no right to mortgage; that he was the vendee of the property whioh the mortgagor had the right to mortgage and in addition that he was the owner of certain other property which the mortgagor had no right to mortgage but which had been incorrectly recorded as transferred by the mortgage. during the suit and the execution proceedings, the plaintiff was the person most directly interested in respect of the property which the mortgagor had the right to mortgage. he had the right.....
Judgment:

Stuart, J.

1. The facts of the suit out of which the present appeal arises, in so far as it is necessary to state them, are these: A certain Zahurul Hasan executed a deed of simple mortgage on the 15th July 1895, in favour of Tufail Ahmad and Muhammad Was by which he purported to hypothecate certain property. The plaintiff, the Hon'ble Rai Bahadur Pandit Sadauand Pandey, purchased later certain property which included a portion (at any rate) of the property so hypothecated, from the brother of Zahural Hasan. Tufail Ahmed and Muhammad Wasi instituted in 1911 a suit on the mortgage of 1895. In that suit they made the plaintiff a party. They obtained a final decree on the 20th September 1913. In execution of that decree what purported to be the property hypothecated was brought to sale and was sold on the 20th December 1916 to Tufail Ahmad and Muhammad Wasi. The plaintiff was a party to the suit and to the execution proceedings. On the 9th December 1917, Tufail Ahmed and Muhammad Wasi on the authority of their sale certificate, took possession of a 2-anna 2-pie share in a certain mahal. The plaintiff then instituted the suit, out of which this present appeal has arisen, for a declaration that the property in that mahal originally hypothecated by the deed of 1895 amounted only to a small share thereof, and that he, the plaintiff, was entitled to the possession of the remainder. He also sued for mesne profits. The Additional Subordinate Judge decreed his suit. The learned District Judge, on appeal, partially decreed the suit holding, that a portion was barred by Section 47. The main point upon which the plaintiff comes here in second appeal is that Section 47 of the Code of Civil Procedure does not bar the present suit. In supporting the appeal the appellant's learned Counsel, Dr. Sen, urged mainly that under the authority of the Full Bench decision reported in Bhagwati v. Banwari Lai 1 Ind. Cas. 416 : 31 A. 82 : 5 M.L.T. 185 : 6 A.L.J. 71 (F.B), Tufail Ahmed and Muhammad Wasi must be considered, since their purchase, as auction-purchasers, and, as such, not parties to the suit in which the decree was passed or their representatives, and that the questions before the Courts in this present suit were not questions relating to the execution, discharge, or satisfaction of the decree I do not find that the Full Bench decision exactly covers the point before me. It is necessary to look very closely at the result of that decision. It was a decision by a bare majority. In so far as the point before the Full Bench was concerned, the decision is clear enough, but how far that decision can be utilised to support a broad rule of law, is not so clear. The point in that appeal was this : A decree-holder in a suit on a mortgage herself purchased the mortgaged property. The judgment-debtors refused to give up possession. She instituted a regular suit against them. Stanley, C. J., and Knox, J., decided that such a suit was barred under the provisions of old Section 244. Banerji, J., Aikman, J., and Griffin, J., decided that such a suit was not barred. The views of the majority of course prevailed. But it is to be infected that the question there was in respect of something which had arisen after the sale. What is the point in dispute there? It is this: What property could be sold under the mortgage decree? That question arose before the sale became effective What the plaintiff now asserts is that Tufail Ahmad and Muhammad Wasi bad obtained a mortgage of property, a large portion of which the mortgagor had no right to mortgage; that he was the vendee of the property whioh the mortgagor had the right to mortgage and in addition that he was the owner of certain other property which the mortgagor had no right to mortgage but which had been incorrectly recorded as transferred by the mortgage. During the suit and the execution proceedings, the plaintiff was the person most directly interested in respect of the property which the mortgagor had the right to mortgage. He had the right of equity of redemption (which he could or could not exercise, as he desired and which, as a matter of fact, he did not exercise) and he was a party to the suit in which the decree was passed; and up till the confirmation of the sale, there could be no question as to the mortgagees being considered to have lost their title as mortgagees and acquired the title of auction-purchasers. One question at the time of execution was the question which arises in the present suit. Had the mortgagor mortgaged more than he had a right to. mortgage? And the only person interested in. asserting that he had mortgaged more than he had a right to mortgage, was the present plaint-tiff. The question was thus, in my opinion, a question relating to the execution, discharge and satisfaction of the decree and as such could only be determined by the Court executing the decree and not by a separate suit The learned District Judge thus, in my opinion, was right in holding that the suit was barred by Section 47.

2. There remains the question of the cross objections put forward by the defendants. Their case is that Section 47 applies. I have already dealt with that point. But they go on further to question the decision of the leamend District Judge which is to the effect that a portion of the property claimed by the plaintiff was not covered by the execution proceedings and the sale certificate. The plaintiff-appellant contends that the cross-objections endeavour to controvert a finding of fact. On reading the judgment I am of opinion that the appellant's objection must prevail. The finding is a finding of fact. I, therefore, dismiss the appeal and dismiss the cross-objections. The appellant will pay his own costs of the appeal and those of the respondents including fees on the higher scale. The respondents will pay their own costs of the cross-objections and those of the plaintiff -appellant.


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