1. This is a judgment-debtor's appeal in an execution case. In order to understand the case it is necessary to keep in mind the following facts : Karam Ata and. Abdul Samad were brothers. Abdul Ahad, the mortgagor, is the son of Abdul Samad. Absanullah and Mt. Razia Bibi are the two children of Karam Ata. Sheikh Abdul Ahad executed three mortgage-deeds in favour of the respondents. They were executed in 1906, 1914 and 1922, respectively. On foot of these three mortgage deeds, three separate suits were instituted and mortgage decrees were obtained by the respondents against Abdul Ahad. Those decrees have been made final. The respondents decree-holders have applied for execution of their decrees against the appellant. The objection taken by the appellant in the Court of the learned Subordinate Judge was that the decree-holders were not entitled to proceed against the entire shares mentioned in the application for execution, but only against portions thereof. In order to understand this plea it will be necessary to relate some other facts which are as follows:
On 27th April 1927, Mt. Razia Bibi and her daughter instituted a suit against Sheikh Abdul Ahad claiming a 5 annas 4 pies share in the estate which was at one time owned by Karam Ata and his brother Abdul Samad. It was alleged on behalf of Sheikh Abdul Ahad in that case that in 1886 there was a compromise under which he became the owner of the entire 16 anna share. On the other [hand the two ladies who sued him contended that Abdul Samad and after him Abdul Ahad were trustees in respect of the 5 anna 4 pies share which they claimed in the estate. In that suit the mortgagee was also made a party. The learned Subordinate Judge, who decided the case, decreed the claim of the two ladies. Against that decree there was an appeal to the High Court. This Court discharged the decree of the learned Subordinate Judge and in lieu thereof passed a decree under which it was ordered that the ladies named above would get possession over 5 anna 4 pie share if they paid into Court a sum of Ris. 56,000 within a period of six months from the date of the decree of this Court. It appears however that the two ladies were unable to pay this amount. After that Sheikh Abdul Ahad and the two ladies entered into a compromise under which instead of 5 anna 4 pie share the two ladies; got much less. The result was that the judgment-debtors got more than 10 anna 8 pie share.
2. When the respondents-mortgagees, applied for the execution of their decrees, the plea taken by the mortgagor-appellant was that the mortgages could proceed only against that share which, according to the finding of the Subordinate Judge in the suit referred to above, was owned by him. His plea was that the additional share which he possessed had become his in pursuance of the agreement which he had arrived at with the above-mentioned two ladies after the decree of the High Court and therefore the mortgagee could not proceed against that share. The learned Subordinate Judge in whose Court the application for execution was made repelled the contention and held that the mortgagor was estopped from taking any such plea and that the property which he had mortgaged was liable to be sold whether it was owned by the mortgagor at the time when he created the mortgage or whether it came to his possession subsequently. Against that decree the present appeal has been preferred.
3. The only question for our consideration is whether the decision of the learned Subordinate Judge on the point mentioned above is correct. We have heard the learned Counsel appearing for the appellant and after hearing him we are satisfied that there are no grounds for disturbing the order passed by the learned Subordinate Judge.
4. It is a well-known proposition of law that the mortgagor is estopped from pleading that he was not entitled to mortgage the property which he mortgaged. He is also estopped from defeating the claim of the mortgagee in any property which he had mortgaged and which he did not actually own at the time of the mortgage had subsequently come into his possession. This is the principle which is enacted by Section 43, T.P. Act. The question has been discussed in Wiltsie on Mortgage Foreclosure, Edn. 3, pp. 637, 691 and 692 and the whole case law on the subject (English and American) has been discussed at length. It is stated at p. 637 as follows:
A party who mortgages his property with covenants of title is estopped from pleading in defence to a foreclosure, that at the time of the execution of the mortgage he had no title to, nor interest in the mortgaged premises, or any part thereof ; neither can he set up as a defence a. defect in his title
5. At p. 692 we find the following observations which are based of the cases cited therein:
Thus where a mortgagor in his mortgage warrants the title to lands which he really does not possess, and subsequently acquires title thereto, the title subsequently acquired will inure to the benefit of the mortgagee, the same as if the entire title had been originally possessed by the mortgagor, and will estop such mortgagor, and all persons claiming under him., from subsequently assorting any title against the mortgagee and those claiming under him. the reason for this seems to be that the mortgagor will not be permitted to attack a title, the validity of which ho has covenanted to maintain.
6. We might be permitted to make one more quotation from this book which is to be found on p. 693 and which is as follows:
The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase. And hence, the mortgagor and those in privity with him, in good faith and fair dealing should be for over thereafter precluded from gainsaying it.
7. We are in agreement with the view expressed above. The mortgagor when he executed the three mortgage deeds believed that lie was fully competent to execute them. Years after a claim was brought for a part of the estate. If the decree of the High Court had set aside the decrees which the mortgagee had obtained against the mortgagor, then the position would have been different, but the High Court never set aside the decrees which the mortgagee bad obtained against the mortgagor. The litigation as regards a share in the entire 16 annas was between the mortgagor and his relations. The mortgagees certainly were also parties to the suit and if any decree had been made against them they would have been bound by it. For instance if 16 anna share had been mortgaged to them and under that decree of the High Court it had been decided that the mortgagor was the owner of only a 10 anna share, then certainly the mortgagees would have lost their 6 annas which had been mortgaged to them. The result of the High Court decree in the case before us in no way affected the three mortgages set up by the mortgagees. The two ladies were unable to pay the amount which they had been directed to pay under the decree of the High Court and any agreement which the mortgagor may have made with them would not in the least affect the rights of the mortgagees who were not par ties to it.
8. In the case before us there is another point which is against the judgment-debtor. It is this. The mortgagees have obtained decrees on foot of the three mortgages against the mortgagor. The mortgagor in the three suits instituted against him never took the plea that lie was not entitled to mortgage the entire property which he had mortgaged. Those decrees were made final. The Court executing the decree cannot go behind them. All that it bias to see that the property against which the mortgagee decree-holder desires to proceed is in. possession of the mortgagor or his representatives. If that be so, then the mortgagee is entitled to proceed against that property and a Court executing a decree will not in execution department enter into the complicated question as regards the nature of the title of the mortgagor. For instance, a Court executing a mortgage decree is not entitled to decide whether the property which the mortgagor got after the execution of the mortgage deeds can be sold in execution of a mortgage decree. It will look into the mortgage decree and if it finds that the property sought to be sold is specified therein, then its plain duty will be to execute the decree leaving the parties to have their rights determined separately by institution of a separate suit. In these circumstances we are of opinion that the decision of the Court below is correct and we accordingly dismiss the appeal with costs.