1. The essential point in this case, as it has been laid before us, may be briefly stated. The property in suit amounting to five cowris odd was originally the property of one Bharosan. In July 1882 he mortgaged four cowris to the predecessors-in-interest of the appellants. He died in November 1882. Very shortly after his death, two of his sons mortgaged about 2 1/2 cowris to the predecessor-in-interest of the appellants and one Pyari Roy. At the end of 1883, the plaintiffs purchased the whole of the five cowris odd in execution of a money-decree. The appellants and Pyari Roy sued on the mortgage of November 1882 and obtained a decree on the 18th May 1892. The property mortgaged, that is to say 2 1/2 cowris, was ultimately sold on the 15th December 1895. The plaintiffs had been made parties to that suit in the capacity of purchasers under the money-decree of 1883. Subsequent to the decree in that suit and before the sale, the plaintiffs had, on the 22nd March 1893, purchased the four cowris which had been mortgaged on 5th July 1882 in execution of a decree obtained by the appellants on that mortgage. The plaintiffs have sued for possession of the whole of the property.
2. The Munsif gave them a decree for the property purchased by them on the 22nd March 1893 and also for two-fifths of the remainder of the property. The Subordinate Judge confirmed the decree with respect to the four cowris purchased by the plaintiffs in 1893 and gave them a decree for one-fourth of the residue.
3. The defendants appeal and the principal contention raised on their behalf is that so far as regards the 2 1/2 cowris purchased by them in December 1895, the suit is barred by Section 244, Civil Procedure Code. It is argued that the plaintiffs were parties to the suit in which that sale was held. At the time of the decree they were mere purchasers under a money-decree and were not in a position to contest the decree itself but that subsequently in March 1893, they purchased four cowris out of the five cowris odd in execution of a decree on a prior mortgage: and it is argued, therefore, that as they obtained subsequently to the decree of May 1892, the right to object to the sale in execution of the property covered by that decree, they should have raised that objection under Section 244 and cannot now be permitted to raise it in a separate suit.
4. It appears to us that this contention is well founded. It is clear that when the plaintiffs purchased the property in 1893 in execution of a decree on a prior mortgage, they obtained a right to four out of the five cowris paramount to that which the defendants had put forward in the suit which had terminated in 1892. They were entitled, we think, to demand that the whole 2 1/2 cowris which, of course, exceeded the residue of the whole property should not be sold under that decree and it cannot be said that such a demand would not have been a question arising between the parties to the suit and relating to the execution of the decree.
5. It is argued on the other hand that this was essentially a question which must be raised in a separate suit.
6. The learned Subordinate Judge regards it as a question as to the validity or otherwise of the decree which could not be gone into under Section 244, Civil Procedure Code.
7. It seems to us that this argument is not tenable. The plaintiffs had no reason to attack the decree at all. From their point of view the decree was perfectly good at the time it was passed, but in consequence of circumstances arising subsequent to the decree, it ought not to have been executed against certain property.
8. The learned pleader for the respondent has referred to the case of Sanwal Das v. Bismillah Begum 19 A. 480 in which the learned Judges held that where the decree was a decree for sale under the Transfer of Property Act, the Court executing the decree must sell the property decreed to be sold and leave any one objecting to the execution of the decree against that particular property to such remedy as he may have by a suit. But in that case the claims of the lady who was objecting to the execution were based on a title which accrued prior to the decree and her objection was as much against the decree itself as against the execution.
9. Similarly in Akikunnissa Bibee v. Roop Lal Das 25 C. 133 the learned Chief Justice held that the Claims of the appellant in that case ought to have been raised and decided in a separate suit and not in the mortgage suit: but in that case also the appellant's claim was based on her title anterior to the decree.
10. We have been shown no authority for holding that, when a judgment-debtor accepts a decree as perfectly valid and binding, but contends that it should not be executed against particular property in consequence of circumstances arising subsequent to the decree itself, such a contention should not be dealt with under Section 244. That section has to be liberally construed to avoid multiplicity of suit and we can see no reason why in this case the plaintiff should not have pressed his objections to the sale of 2 1/2 cowris at the time of sale. That he could have pressed such an objection under Section 244 seems clear from the decision in Ram Narain Sahu v. Bandi Pershad 31 C. 737.
11. We have been referred to certain cases which lay down that a question relating to an order absolute under Section 89 of the Transfer of Property Act is not a question coming under Section 244; but we do not think that they have any application to the present case. In Hatem Ali Khonkar v. Abdul Gaffur Khan 8 C.W.N. 102 the reason that a question that arises as to the order absolute for sale is not a question relating to the execution of the decree is said to be that until a decree absolute is made, there is in fact no decree capable of execution. It seems to follow that when a decree absolute has been made Section 244 applies to its execution.
12. It has also been argued that the learned Subordinate Judge is wrong in holding that the appellants are estopped from questioning the validity of the plaintiff's title by reason of the notification which they published at the time of the sale at which the plaintiffs purchased to the effect that the property was sold free from incumbrance. But admittedly at that time, the appellants had obtained a decree on the mortgage of November 1892 and the plaintiff was a party to that decree. He, therefore, was well acquainted with the facts and could not have been misled in any way by the defendants conduct. He is not, therefore, in a position to plead estoppel. In conclusion, the point is taken that, in the event of the first contention of the appellants failing, the Subordinate Judge was wrong in finding that Bachu the son of Bharosan died after his father, a circumstance which caused the Subordinate Judge to give the plaintiff a decree for one-fourth of the residue. As we have found the first contention in favour of the appellants, it is not necessary really to go into this second point; but we may say that it appears to us to be a question of fact with which we cannot deal in second appeal.
13. The result will be that the appeal will be partly allowed and the plaintiff will obtain a decree for 1 ganda, 1 cowri, 2 krants, 8 rens, 9 paras, minus 2 cowris, 2 krants, 1 danti, 14 rens, 7 paras, that is to say 2 cowris, 2 krants, 1 danti, 34 rens, 2 paras.
14. The appellants will be entitled to the costs of this appeal; as the parties have succeeded with respect to about half of the property which they respectively claimed, they will bear their own costs in the Courts below.