Krishna Kumar Baksh vs Dullab Sirkar and Another

Norman, J.—This is a suit by the plaintiff to establish his title as purchaser of Kismat Jaipura, against the defendants, who are seeking to bring the property to sale, in execution of a decree on a bond, by which the property had been pledged by the prior owner before the date of the plaintiff''s purchase the facts are as follows:

One Kudam Sircar mortgaged Kismat Jaipura to Ramjay Mozoomdar, by a bond, which was registered under the provisions of section 53 of Act XX of 1866. Subsequently to the registration of the bond, Ramjay having obtained a money-decree in a suit against Kudam Sircar, caused Kismat Jaipura to be attached, and sold in execution of the decree. In describing and particularizing the property to be sold, he made no mention of the mortgage; but allowed the property to go to sale, as if it had been unencumbered. The plaintiff purchased the property for a large sum, rupees 1,500. Ramjay Mozoomdar afterwards obtained a decree on his registered bond, which be sold to the defendants. In execution of that decree, the defendants caused Kismat Jaipura to be attached. The plaintiff intervened u/s 246, without success.

The question in the present suit is whether the defendants have a right to sell the property under the decree which they have purchased. The Judge, reversing the decision of the Principal Sudder Ameen, holds that the defendants must be considered as standing in the same position as Ramjay Mozoomdar, and that they have not such right.

The defendants appeal. They contend that only the rights and interests of Kudam Sirkar were sold under the decree; that the plaintiff''s purchase was subject to the lien under the bond; and that the bond having been duly registered u/s 53, the plaintiff must be deemed to have bought with notice of the charge created by it.

We think that the decision of the Judge is correct.

By causing the property of Kudam Sirkar to be sold in execution of a decree, having not only made no objection to the property being sold as the absolute property of Kudam Sirkar, but actually suppressing the fact of the charge upon it created by the bond, Ramjay Mozoomdar induced the plaintiff to buy the property in the belief that the title of Kudam Sirkar was a valid one; and that so far at least as he was concerned, there was nothing to prevent a purchaser from acquiring a good title as owner. We may add, that Ramjay Mozoomdar apparently had the full benefit of the money realized by the sale which took place. Under these circumstances, Ramjay could not set up the lien under his bond as against a purchaser who bought the right of Kudam Sirkar. That right was allowed by Ramjay, for his own purposes, to appear to be that of an absolute owner; and Ramjay cannot now, to the prejudice of the plaintiff, say that it was not so. The defendants, who are merely executing Ramjay''s decree, can have no greater right than Ramjay himself. The appeal is dismissed with costs.