SONU LAL Vs. RAMNANDAN SINGH

JUDGEMENT

(1.) The appellants are sons and successors in interest of the holder of a mortgage dated 23 October 1916, on which he brought a suit on 7 February 1930, and obtained a preliminary decree dated 14 July 1930, and final decree dated 18th January 1932. He put the property to sale on 9 February 1932, and got delivery of possession on 19 June in the same year. The principal respondent had taken two mortgages, one dated 3 February 1914, and another dated 18 April 1915, secured on a number of properties including that in respect of which the appellants are interested. He brought his suit on 5 June 1922, impleading his mortgagors and the present appellants father in the capacity of a puisne mortgagee. The latter resisted the suit, and on 10 March 1927, the respondent abandoned his claim and suffered it to be dismissed so far as the appellants father was concerned, but obtained a compromise decree against the mortgagors for sale not of all the properties comprised in the mortgage, but of certain of these properties only others being exempted. Later he moved the Court to review the decision in so far as its effect was to dismiss the suit against the appellants, but the application was not granted. The respondent took his final decree on 10 January 1931, and requested the Court to expunge the name of the present appellants from the record. This was refused and the name of the appellants, therefore, remains as the name of a party against whom the suit has been dismissed.

(2.) In 1932 the respondent put his decree into execution. At that time he asked the Court to notify in the sale proclamation the appellants encumbrance, but at a later stage of the proceedings this was withdrawn, and he is now seeking to put the property up for sale without any reference to any right or claim of the appellants. The latter objected that the property which it was sought to be put up for Sale was their property and could not be sold in execution of the respondent's decree. The respondent opposed this objection contending, first, that the appellants not being judgment debtors had no locus standi to contest the application; secondly, that the application was not maintainable as it was not an application relating to the execution, discharge or satisfaction of the decree but one going to the root of the decree itself; and, thirdly, claiming that the mortgage of the respondent and decree passed thereon had priority over the mortgage decree and auction-purchase of the appellants and that the property should be sold free from any encumbrance in favour of the appellants.

(3.) The Subordinate Judge has held, first, that the appellants are still parties to the suit notwithstanding that it has been dismissed as against Basant, and, therefore, the first objection of the decree-holder against the maintainability of the objection failed. The Subordinate Judge next held that the application of the objector was an objection to the whole decree and, therefore, did not come within Section 47, as a question relating to the execution, discharge and satisfaction of it.