Chaman Lal and others vs Kamaruddin Mian

Dawson Miller, C.J.—In this case the plaintiff was the mortgagee of a certain holding occupied by one Ramlal Chamar, a tenant, and in August, 1911, the plaintiff sued on his mortgage bond and obtained a decree against Ramlal Chamar and his two minor sons. Whilst that decree was in existence and before it was executed a fractional landlord of the mortgaged property sued for rent obtained a decree and brought the holding to sale, and in August, 1914, in execution of the decree the defendant purchased the property.

The decree under which the defendant purchased was that of a co-sharer landlord suing for his share of the rent and presumably would be treated as a money-decree. Subsequently on the 10th November, 1915, the plaintiff, in pursuance of his mortgage-decree, which was in existence before the defendant purchased, put up the property to sale again in execution and purchased it himself and got delivery of possession.

When the execution proceedings were pending, the two sons of Ramlal Chamar, who had been made defendants in the plaintiff''s mortgage suit, objected that not withstanding the decree obtained against them, which I may mention was obtained on a compromise to which they were apparently parties, they were not at the time the decree was obtained, of majority but were and had been throughout minors, and that, therefore, as against them the decree could not be executed; and it appears that an order was made striking out their names in the execution proceedings.

However this may be, it also appears that their names were not in fact struck out and in due course the property was put up to sale and purchased by the plaintiff in execution of his mortgage- decree. I have no doubt that what was sold in execution of the mortgage-decree was the whole holding and not merely the interest of Ramlal Chamar. That was one of the issues in the case and the learned Munsif, who had to decide that issue, came to the conclusion of fact upon it and he said,

" considering all the circumstances and the fact that the purchase by the plaintiff of the disputed land was for Rs. 379 and odd, whereas the purchase by the defendant of the disputed land and other lands was for Rs. 45 only, I hold that the entire property in suit passed by the. sale to the plaintiff."

The learned Subordinate Judge, agreed with the findings of the Munsif and dismissed the, appeal which was preferred to him. It seems to me therefore, that it cannot now be questioned that rightly or wrongly what passed at the sale in execution of the mortgage decree was the whole property in suit in that case.

The question which now arises is whether the sale to the defendant in execution of his money-decree or the later sale to the plaintiff in execution of his mortgage-decree, the mortgage-decree being in existence at the time of the defendant''s purchase, is to prevail. Both the trial Court and the first appellate Court found in favour of the plaintiff, and broadly speaking the ground upon which their decisions were based was that where a sale had been made in execution of a mortgage-decree, even if the sons of Ramlal Chamar were not bound necessarily by the mortgage-decree, the sale was not void but voidable. In the present case, assuming that the defendant had purchased the whole property in execution of his decree, what he really purchased was the properly subject to the mortgage charge and, therefore, the mortgage charge must take priority over his interest.

It may be that having purchased the property he stepped into the shoes both of Ramlal Chamar and his sons but it seem to me that even the sons of Ramlal Chamar could not have, this mortgage and the decree resulting therefrom and the sale resulting from the decree, set aside until they had shown that the sale was the result of a mortgage which was not either justified by legal necessity or was invalid for some other reason.

The result, therefore, is that, in my opinion, decree of the learned Subordinate Judge affirming that of the Munsif was right and the decision of the learned Judge who took a different view as to the rights of the parties cannot be supported.

In my opinion, this appeal should be allowed, the decree of the learned Judge set aside and that of the Subordinate Judge restored.

Adami, J.

I agree.