Bishan Narain, J.
1. The house in dispute originally belonged to one Kharga. It was inherited by his sons Amar Singh and Harnam in equal shares. On 9-4-1925 the brothers mortgaged the whole house for Rs. 300/- with Tagmal. On 10-1-1933 they sold the western half of the house to the mortgagee for Rs. 500/- and the mortgage was redeemed. Thus the eastern half of the house became free from mortgage. Jagmal in his turn sold the western portion to Pat Ram on 6-12-1934 It appears that one Mat Ram filed a suit for the recovery of certain amount against the two brothers. In 1928 the suit against Harnam was dismissed hut it was decreed against Amar Singh.
In execution of his decree Mat Ram got attached the equity of redemption of Amar Singh's share in the house in March 1933. Jagmal filed objections under Order XXI rule 58, Civil Procedure Code, on the ground that he was owner of the western half by purchase and that this portion could not be attached and sold in execution of the decree of Mat Ram. The objections were dismissed on 8-1-1934 on the ground that the same had been filed after long delay. Neither Jagmal nor Pat Ram, his suecessor-in-interest, filed any suit under Order 21 rule 63, Civil Procedure Code. The attached property was sold and the decree-holder purchased it on 15-12-1933.
The sale was confirmed on 18-1-1934. The sale certificate was issued on 9-2-1937 and the decree-holder's case is that he got symbolical pos-session of the property sold in his favour on 1-3-1937. After the death of Mat Ram his legal re-presentatives brought the present suit against Pat Ram. Jagmal etc. for partition of their share in the house. The trial Court framed eleven issues in the ease and decided only some of them. The trial Julge however, dismissed the suit on the ground that there was no valid transfer of symbolical possession of the equity of redemption to Mat Ram. The plaintiffs appealed.
The Additional District Judge reversed the findings of the trial Court and came to the conclusion that the plaintiffs got the symbolical possession of the right and interest purchased by them in accordance with law. He, however, held that though Jagmal or his successor-in-interest had not filed any suit under Order 21, Rule 63, Civil Procedure Code, after the dismissal of the application under Order 21 Rule 58, Civil Procedure Code, it was open to the defendants to prove their title in the property. He then examined the evidence and held that on the date of attachment and of sale, Amar Singh had interest only in half share of the house along with his brother Harnam and therefore the attaching decree-holder could attach and purchase only his (judgment-debtor's) share which was 1/4th of the entire house.
The Additional District Judge accordingly granted in favour of the plaintiffs a decree for possession by partition of one-fourth of the house and then remitted issues regarding improvements etc. to the trial Court for decision. Dissatisfied with this decision the plaintiffs have filed this second appeal from order in this Court and their point in the appeal is that they are entitled to get possession of one-half of the entire house instead of one-fourth.
2. The learned counsel for the defendants endeavoured to support the decision of the lower appellate Court on the ground that there was no valid delivery of symbolical possession to the plaintiffs in the present case. If this plea prevails, then the plaintiffs' suit was liable to dismissal. The defendants have, however, not appealed against the decision of the Additional District Judge, and it would be improper to examine this plea in the absence of such an appeal. This is not a case of the nature where the decision would not involve anything but the decision of (the appeal. This objection goes to the root of the case and, if upheld,, the suit necessarily fails and the remand order becomes infructuous. I cannot uphold the defendants' plea and yet maintain the remand order passed by the Additional District Judge. I, therefore, did not permit the defendants' counsel (to argue this point.
3. The learned counsel for the appellants has urged that the defendants are precluded from asserting their title to the western part of the house as they did not on dismissal of their objections under Order 21 Rule 58, Civil Procedure Code, file any suit. There is substance in this argument. Mulla in his well-known commentary has stated the law in these words-
'Unless the suit is brought as provided by the rule (i. e., Order 21 Rule 63, Civil Procedure Codel the party against whom the order is made cannot assent either as plaintiff Or as defendant in any other suit or as a party to any other proceedings, the right denied do him.'
This was so held as far back as 1877 in Baclri Prasad v. Muhammad Yusuf, ILR 1 All 381 (FB). It is, therefore, necessary to examine the right that is denied to Japmal in the proceedings instituted by him under Order 21, Rule 58, Civil Procedure Code. In that application he had claimed absolute title in the western half of the house by purchase and sought the relief that this portion should not be attached and sold. The application was dismissed on the ground that it had been filed after long delay. Therefore Tagmal was denied the right claimed by him by purchase. The same title he is setting up as a defendant in the present suit, and this title he is debarred from asserting even as a defendant
4. This legal proposition was not seriously challenged by the defendants' counsel. He, however, urged that the defendants are in actual possession of the entire property since long and that they can defend this possession by putting the plaintiffs to prove their title and that the evidence on the record shows that at the time of attachmentthe plaintiff's judgment-debtor, i. e., Amar Singh had only one-fourth share in the property in dispute as the other share of his had already been along with his brother's share sold to Jagmal.
He further urged that the defendants' right to remain in possession of the property could not be extinguished unless it be so under Section 28 of the Indian Limitation Act. But such an extinction is not possible in the present case as the defendants are still in possession of this property. After consideration, I have come to the conclusion that this argument must be rejected. In the present case, the defence of possessory title as distinct from title obtained by purchase does not arise. The plaintiffs attached and purchased Amar Singh's right and title in the house in dispute. According to the plantiffs, this right was the right to redeem half of the house. This was the property the plaintiffs got attached and then purchased. They got symbolic possession of it.
The delivery of symbolic possession in execution of a decree to the decree-holder or to the auction-purchaser as against a judgment-debtor is equivalent to the delivery of actual possession. Such a delivery therefore operates as dispossession of the judgment-debtor (vide Juggobundhu Mukerjee v. Ram Chunder Bysack, ILR 5 Cal 584 (FB) approved by the Privy Council in Sri Radha Krishna Chanderji v. Ram Bahadur, AIR 1917 PC 197). It follows that the plaintiffs dispossessed Amar Singh, the judgment-debtor, and got actual possession of his rights in the property. This right was equityof redemption in half of the entire house.
This position cannot be disproved unless the defendants are allowed to show that Tagmal had purchased absolutely the western one-half of the house from Amar Singh and Harnam. This they arc precluded from showing by the provisions of Order 21 Rule 63, Civil Procedure Code.
Jagmal's failure to assert his right under the sale deed by a suit under Order 21 Rule 63, Civil Procedure Code, has the consequence of the sale not being effective and must be deemed to be nonexistent qua the plaintiffs. The result is that Tag-mal and his vendee Pat Ram must be held to be mortgagees of the entire interest of Amar Singh in the house and the plaintiffs must be held to be successors-in-interest of Amar Singh. It is not the case of Jagmal or his successor Pat Ram that their possession was adverse to that of Amar Singh. In any case the Privy Council in Khiarajmal v. Daim, ILR 32 Cal 296, observed -
'As between them (i. e., the mortgagor and the mortgagee), neither exclusive possession by the mortgagee for any length of time short of the statutory period of sixty years, nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption, will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem.'
That being so, the question of the respondents defending their possession in the present case does not arise. They can, however, insist that the plaintiffs must redeem the mortgage, so far as it relates to Amar Singh's share in the property, before possession is delivered to them.
5. In support of his contention the learned counsel for the respondents relied on Sheoraj Singh v. Gajodhar Prasad, AIR 1942 Oudh 465 (FB). Itwas held in that case that if an application under Order XXI rule 58 Civil Procedure Code, is filed, but it does not fall within that provision, then a suit under Order XXI Rule 63, is not necessary by the unsuccessful party in such proceedings. It was also held therein that an order under Order XXI Rule 58. cannot have the effect of transferring rights from one party to another party. These conclusions have no application to the present case, in the present case. all that the plaintiffs are claiming is that Jagmal is precluded from asserting his title by purchase as on the dismissal of his application he failed to file a suit under Order XXI rule 63, and therefore the transfer by that purchase cannot affect the plaintiffs' right.
6. The learned counsel then relied on Laxman Ganesh v. Bahrain Lahanu. AIR 1948 Bom 18. In that case all that was held was that the defendant who had not filed a suit under Order XXI rule 63, Civil Procedure Code, after his objections had been dismissed, was precluded from proving his the to the properly, but that he could prove that the court-sale in plaintiff's favour was bogus and therefore the plaintiff's suit must be dismissed. The position in this case is to a slight extent similar, but unfortunately the defendants failed to prove that the delivery of symbolic possession was invalid. In the Bombay case the defendant was not allowed to prove his title and to that extent the case is in favour of the appellants.
7. Lastly, reliance was placed on Dharapuram Janopakara Nidhi Limited v. K. Lakshminarayana Chettiar, AIR 1939 Mad 456 (SB). In that case it was held that when the attached property is not sold through Court and the decree is satisfied out of Court, then the person whose objections to attachment have been dismissed need not file a suit and be will not in a subsequent suit or other proceedings be precluded from proving his title. This case obviously, has nothing to do with the present case. It was also held in the Madras case that if the objections are dismissed on the ground that the objector was not in possession, then without filing a suit he is not precluded in a subsequent suit to Prove his prior possession.
This conclusion is based on the ground that the dismissal of objections cannot have the effect of transferring possession to the judgment-debtor and that in the subsequent suit the defendant could show that he had ripened his title by adverse possession. It is to be remembered that in the Madras case it was not asserted in objections under Order XXT Rule 58, Civil Procedure Code, that the applicant had become owner of the property by adverse possession and therefore that right could be asserted in subsequent proceedings in spite of the fact that no suit under Order XXI Rule 63 was filed. After all Order XXI Rule 63 makes Qua decision on the objections conclusive relating to the right claimed in the objections if the order is not challenged by a suit.
In the present case all that has been held is that the defendants cannot assert the title under the stile deed which was in fact rejected in the application under Order XXI Rule 58. For these reasons all these cases are distinguishable and have no application to the present case. I, therefore, hold that the defendants cannot set up their title in this suit based on the sale deed dated 16-1-1933 and they must therefore be treated as mortgagees under the 1925 document.
8. The appellants counsel urged that his clients went full owners of Amar Singh's shave as admittedly the mortgage had been extinguished according to the defendants. The plaintiffs, however, had specifically attached and purchased only the equity of redemption and they cannot claim more than that right. If the 1933 sale in favour of Tagmal is giveneffect to, then the plaintiffs can claim only 1/4th share in the house in dispute, but between the parties the effect of this transaction cannot be taken into consideration. It is not possible to consider the document only for the benefit of one party and ignore it so far as it affects the other party. If the sale of 1933 is not effective between the parties to the present litigation, then it cannot be said that the mortgage had been extinguished. I have, therefore, no hesitation in rejecting this contention.
9. The result is that this appeal succeeds to the extent that it is held that the plaintiffs arc entitled to get by partition half of the house in dispute but subject to payment of Amar Singh's share of the mortgage amount due under the 1925 document. The case is remanded to the trial Court for decision of the other issues and for partition of the house in accordance with this judgment.
10. Parties have been directed to appear before the trial Court on 3-4-58.
11. Parties will bear their own costs of this appeal.