Decided on July 03,1999

Rattan Lal And Anr. Appellant


Jia Lal Kilam, J. - (1.) This is an appeal to His Highness the Maharaja Bahadur against a judgment dated 15th of Har 1997 of the High Court of Judicature, Jammu and Kashmir. The appellants are Rattan Lal and Jewan Lal two out of four sons of Sham Lal judgment-debtor and the respondents are Surinder Singh decree-holder and Maharaj Kishen auction-purchaser. A summary of the facts that have led to this protracted litigation is as follows:- On the 13th of Chet 1972 Sham Lal borrowed a sum of Rs. 6,000 from Surinder Singh and executed a mortgage-deed of a house in his favour to secure the repayment of the loan with interest at Rs. 9/- per cent, p. m. with quarterly rests. Out of the amount so borrowed Rs. 4,500 was paid to a former creditor of the mortgagor, Rs. 1,300 was paid in cash to him and Rs. 200 was added as expenses of the mortgage-deed. Default having been made by Sham Lal in the payment of the amount due from him, a suit was instituted against him by Surindar Singh and an ex-parte decree was granted to him on the 29th of Magh 1980 for an aggregate sum of Rs. 8,600 and costs and future interest at 6 per cent p. a. The decree was expressly made executable against the mortgaged property and other property of the mortgagor and his person.
(2.) In execution of this decree the decree-holder had the mortgaged house and some other property, not originally mortgaged to him, attached. To this attachment an objection was raised by the appellant Rattan Lal for self and on behalf of his three minor brothers. This objection was, however, dismissed by the executing Court which proceeded to sell the property attached. It was actually sold on the 22nd of Katik 1985 for Rs. 7,050 to Maharaj Kishen respondent. The sale was confirmed on 24th Poh 1985 and possession of the property sold by auction was given to the auction-purchaser on the 24th of Magh 1985. In the meantime on the 13th of Katik 1985 a declaratory suit under Order 21, Rule 63 of the Code of Civil Procedure had been instituted by Rattan Lal for self and acting as guardian of one of his younger brothers, Jewan Lal. The ground of relief was the same as in the objection proceedings ; it was alleged that the property mortgaged was the Co-parcenary property of Sham Lal and his four sons and that its mortgage, not being for family necessity, was not binding on the plaintiffs. Indeed it was averred that the bulk of the consideration was tainted with immorality. The prayer in the suit, therefore, was that the mortgage and the decree obtained by the decree-holder on its basis be declared to be null and void and not binding on the coparcenary property. Along with the plaint an application was presented for stay of execution. It was, however, dismissed by the trial Court.
(3.) At the hearing of the suit an objection was taken by Surinder Singh, decree-holder defendant, that the auction-purchaser, who had not been impleaded in the suit, should be added as a defendant. This objection was disallowed. Sham Lal it may be mentioned here, had been impleaded as a defendant but he does not seem to have taken any active interest in the subsequent litigation. The suit was ultimately dismissed on the 4th of Jeth 1990. Against the decree dismissing the suit an appeal was preferred by the plaintiffs to the High Court. It was accepted by that Court on the 26th of Maghar 1991 in a somewhat brief judgment so much so that its implications had to be explained by the High Court in two subsequent judgments on appeals from orders passed by the executing Court purporting to act in accordance with the directions contained in it. It may be mentioned here that though the auction-purchaser was not a party to the original appeal, which was disposed of on 26th Maghar 1991, he was impleaded as a respondent in a subsequent appeal against an order of the executing Court which was decided by the High Court on the 28th Magh 1994 whereby the proceedings were remitted to the former Court with a direction to proceed with the case in accordance with the judgment of the 26th of Maghar 1991 after hearing the objections of all the parties.;

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