Joy Prokash Singh and another vs Abhoy Kumar Chund

The Plaintiff, now Respondent, sued for declaration of title and for possession in respect of certain immovable property which he purchased at an auction sale in execution of a mortgage decree for sale, which he held against the first Defendant Rambirjhawan Singh. It appears that the other Defendants, now Appellants, Joy Perkash Singh and Shobh Narain Singh, who are the brothers of Rambirjhawan Singh, erroneously preferred a claim in the execution proceedings under the provisions of sec. 278 of the Code of Civil Procedure.

Sobh Narain was a minor at that time and was represented by his mother. The claim for some reason, which is not apparent, was limited to one-third of the property in question, that is, one-sixth for each of the two claimants. The claim was dismissed, and it is not disputed that the claimants took no steps to have the order of the dismissal set aside.

That order was made more than one year before the date of the institution of the present suit.

The two Defendants, who now appeal, contested the claim of the Plaintiffs in this suit on the ground that they were owners to the extent of two thirds of the property in question.

The Court of first instance found that that was a true defence, and that, in fact, the 1st Defendant, Rambirjhawan Singh, had only a one-third share in the land; but the learned Munsif, relying on the cases of Badri Prasad v. Mahammad Yusuf ILR 1 All. 381 and Nilo Pandurang v. Rama Patloji ILR 9 Bom. 35 decreed the Plaintiff''s claim in full, holding that the order dismissing the claim of the Defendants Joy Perkash Singh and Shobh Narain Singh had become finally binding upon them in consequence of their failure to question it by regular suit within a year.

These Defendants preferred an appeal from the Munsif''s decision on the question of law, and the Plaintiffs filed a cross-appeal or a cross-objection on the finding of fact.

The learned Subordinate Judge, who disposed of the appeal, dealt only with the question of law as to which he agreed with the Munsif, and therefore did not consider it necessary to go into the question of fact.

It was contended before the lower Appellate Court on the authority of the ruling of this Court in the case of Deefholts v. Peters ILR 14 Cal. 631 that as the procedure prescribed by sec. 278 of the CPC is not applicable to mortgaged property ordered to be sold in execution of a mortgage decree, the proceedings, which were had under the provisions of that section, were a mere nullity, and the result of those proceedings does not, therefore, bind the present Appellants, as it would have done had the decree been a money-decree.

We think that the learned Subordinate Judge has scarcely appreciated the force of this argument His view is that the Appellants were bound to object to the attachment of the mortgaged property in order to sale. He remarks perfectly correctly that the effect of the decision in the case of Deefholts v. Peters ILR 14 Cal. 631 was not to declare that a Court had not jurisdiction to attach mortgaged property ordered by the decree to be sold, and that the judgment in that case "proceeded on a different ground, namely, that where the decree has solemnly ordered a property to be sold, no claim regarding it should be entertained." But it seems to us that the fist question is really immaterial, and that it is the principle on which the decision of that case was based that should govern the present case. That principle, as we understand, was that an order solemnly passed in a decree for the sale of a particular property stands on a perfectly different footing from the attachment of some property of the judgment-debtor for the purpose of satisfying a general claim, and that it is not competent to a Court engaged in the execution of a decree expressly declaring a property to be liable to sale to enter upon a miscellaneous proceeding the result of which might be to nullify that decree to the extent of declaring the property in question not to be liable to sale. We think that it follows, that if an executing Court does in the case of a mortgage decree for sale take action under sec. 278 of the Code of Civil Procedure, it applies a procedure which is inapplicable, and that the statutory bar contained in sec. 283 does not operate to exclude a suit by either party. Therefore, we think that the rulings in the cases of Badri Prasad v. Mahammad Yusuf ILR 1 All. 381 and Nilo Pandurang v. Rama Patloji ILR 9 Bom. 35 would not apply. Moreover, in this case one of the Defendants is a minor and cannot be concluded by the erroneous procedure adopted on his behalf. The decree of the lower Appellate Court is set aside, and the case is remanded to lie dealt with on the issue of fact which has been left undecided'' by that Court. The Appellants will get their costs in this appeal.