SITARAM ABAJI GUJAR Vs. DAGADU ASARAM MARWADI

JUDGEMENT

(1.) 1.This is an appeal by the plaintiff in a suit to obtain a declaration that the sale of certain property in a darkhast at the instance of defendant No.1 was illegal and that the auction-purchasers had no right to take its possession from the plaintiff.

(2.) THE property consisting of survey No.398 originally belonged to one Maruti and his brother Pandu. In May, 1912, it was mortgaged by the two brothers to the father of defendant No.1. THEn in 1923 after Pandu's death Maruti sold part of it to one Shriram, who in turn sold it to defendant No.2, Ibrahim, in July, 1927. THEreafter defendant No. l's father released his mortgage rights over pot hissa No.1, and obtained a decree against Maruti and two subsequent mortgagees in respect of pot hissa No.2 on August 9, 1922. It was a compromise decree) under an agreement between Maruti and defendant No. l's father by which the latter admitted for the purpose' of the suit that Maruti was an agriculturist. THE decree was made binding not only against Maruti but against the two mortgagees. THEreafter Maruti sold a part of the property to the present appellant in March, 1929. Shriram had in his sale-deed undertaken to pay the decretal amount to defendant No. l's father by instalments and defendant No.2, the purchaser from Shriram, had also undertaken the same liability. THE instalments were paid for some years but thereafter there was default and nothing was paid by defendant No.2 or Maruti. In March, 1934, defendant No.1, after his father's death, filed a darkhast for recovering his remaining dues against Maruti and his two mortgagees by sale of the mortgaged property. THE present plaintiff was not a party to the suit. THE property was sold and was purchased by defendant No.1, the darkhastdar, himself for Rs. 555. THE plaintiff then brought the present suit for a declaration that the sale was not binding against him because he had purchased the property from Maruti five years before the darkhast was filed, that he was fraudulently not made a party to it, that it was sold for a grossly inadequate price in the auction, and that in any case the darkhast ought to have been sent to the Collector for execution under Section 68 of the Civil Procedure Code, 1908, because the decree was passed against an agriculturist. THEse contentions have been repelled by the lower Courts and it is held that there was no fraud on the part of the decree-holder, that the proceedings in the darkhast were not void on the ground that they were conducted by the Court and not by the Collector, and that defendant No.1 was not estopped from denying that the plaintiff's land . ?was not subject to the defendant's mortgage decree. THE suit: was therefore dismissed.

(3.) IT is further contended that the execution proceedings should be set aside also on the ground of fraud. Both the lower Courts have held that no fraud' on the part of the decree-holder has been proved and I entirely agree with that conclusion. There is also no case of any estoppel operating against defendant No.1.