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Pandit Khub Chand Vs. Todar Mal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All813; 78Ind.Cas.814
AppellantPandit Khub Chand
RespondentTodar Mal and ors.
Cases ReferredCase of Ganga Sahai v. Kesri
Excerpt:
civil procedure code (act v of 1908) order xxi, section 15 - joint mortgage--decree--execution by one decree--holder--property purchased by decree-holder, whether for benefit of other decree--holders. - - khub chand obtained a sale certificate as well as the delivery of possession and has admittedly remained in exclusive possession of the property ever since 2. one of the co-decree-holders has brought the suit for recovery of possesion of his one-fourth share in the property as well as mesne profits. 4. in my opinion the view taken by the courts below is perfectly correct......has found thab when khub chand applied for execution he expressly reserved the rights of his co-decree-holders, but for this reservation it is possible that the court would have declined to execute the decree under order xxi, rule 15, sub-clause, (2), civil procedure code. the property of the judgment-debtors was put up for sale and was purchased for a sum of rs. 5,562 in the name of the decree-holder khub chand. no money was paid in cash by him but the prioe was set off against part of the decretal amount. khub chand obtained a sale certificate as well as the delivery of possession and has admittedly remained in exclusive possession of the property ever since2. one of the co-decree-holders has brought the suit for recovery of possesion of his one-fourth share in the property as well.....
Judgment:

Sulaiman, J.

1. This is a very clear case. One Sewa Ram, a mortgagee, left four sons who were entitled to his mortgagee rights on his death. These persons secured a decree for sale of the mortgaged property for a sum exceeding Rs. 1,200. This decree was put in exeoution in September 1916 by Khub Chand, defendant No. 6, alone. The learned District , Judge has found thab when Khub Chand applied for execution he expressly reserved the rights of his co-decree-holders, but for this reservation it is possible that the Court would have declined to execute the decree under Order XXI, Rule 15, Sub-clause, (2), Civil Procedure Code. The property of the judgment-debtors was put up for sale and was purchased for a sum of Rs. 5,562 in the name of the decree-holder Khub Chand. No money was paid in cash by him but the prioe was set off against part of the decretal amount. Khub Chand obtained a sale certificate as well as the delivery of possession and has admittedly remained in exclusive possession of the property ever since

2. One of the co-decree-holders has brought the suit for recovery of possesion of his one-fourth share in the property as well as mesne profits.

3. Both the Courts below have deoreed the suit, holding that the purchase must be deemed to have been made on behalf of and for the benefit of all the decree-holders.

4. In my opinion the view taken by the Courts below is perfectly correct. The property was purchased in lieu of a part of the decretal amount which had belonged jointly to all the decree-holders. Execution had been ordered subject to the reservation of the rights of the oo-decree-holders. One decree-holder, therefore, cannot be allowed to purchase the decree exclusively for himself and realise his share of the decretal amount leaving nothing for the co-decree-holders. In equity and justice, therefore, the sale must be deemed to have taken place in favour of all the persons who were interested in the decretal amount.

5. The learned Vakil for the defendant-appellant has relied on a case of this Court reported in Ganeshi Lal v. Jagannath. It may be that that case is distinguishable from the present case inasmuch as the facts of that case were somewhat different. There the co-mortgagees had not joined in the suit at all, but had been arrayed as pro forma defendants. The decree was in favour of one mortgagee alone. Then at the time of the auction-sale it appears that the decree-holder had purchased the property for himself in spite of the protest raised by the other mortgagees. On those oircumstances, the Court was of opinion that the other mortgagees had no interest in the property purchased at auction-sale though they might have had a right to insist on the deposit of tfap purchase-money in Court. But even if that case on principle were not distinguishable from the present case it would be impossible for me to follow it as it would then be contrary to the view expressed by their Lordships of the Privy Council in the Case of Ganga Sahai v. Kesri 30 Ind. Cas. 265 : 37 A. 545 at pp. 554, 555 : 19 C.W.N. 1175 : 18 M.L.T. 203 : 29 M.L.J. 329 : 2 L.W. 837 : 13 A.L.J. 999 : 17 Bom. L.E. 998 : 22 C.L.J. 508 ; (1915) M.W.N. 713 : 42 I.A. 177, (P. C). In this latter case Ganga Sahai one of the co-decree-holders, had applied for execution of his mortgage-decree against the mortgagor and his application had stated that execution was sought subject to the rights of the other mortgagees. The purchase, however, was made by Ganga Sahai himself in his own name and the purohase-money was set off against the decretal amount.Their Lordships held that the properties in question must be deemed to have been purchased for the benefit of all the mortgagees and that the co-decree-holders were entitled to recover from Ganga Sahai their proportionate share of the properties purchased by him in execution of the joint mortgage-decree, in fact the present case is quite parallel to it.

6. In my opinion, therefore, there is no force in this appeal and I dismiss it under Order XLI, Rule 11, Civil Procedure Code.


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