- (1.) IT has been rightly said that the real difficulty of the decree holder begins when he has obtained a decree. To this truism one may add another aphorism, viz. , that the travails of auction purchaser start when the sale is confirmed by the court. This second appeal illustrates the correctness of this statement.
(2.) SIR Mohd. Yakub was a prominent citizen of Moradabad. He had borrowed a certain sum of money from Sahu Param Kirti Saran respondent 1 and executed a mortgage deed to secure the said loan. The properties mortgaged were two houses which are in dispute in this second appeal. SIR Mohd. Yakub was unable to pay this debt and in consequence the mortgagee filed a suit on the basis of the mortgage and the suit was decreed. Feeling himself aggrieved by the decree SIR Mohd. Yakub preferred a first appeal before this court. He however, died sometime in the year 1943 and his heirs were brought on record who included among others Mujtaba Hasan father of respondents 2 to 5 and husband of respondent No. 6. Suffice it to say that the first appeal was dismissed and the decree for sale of the two houses in dispute became final. The suit property was auctioned in execution of the decree and was purchased by Abdul Hasan, appellant in this second appeal. The sale was duly confirmed by the court and a sale certificate was issued in favour of the appellant. It may be stated that Mujtaba Hasan resisted the execution proceedings on various grounds before its sale in favour of the appellant. The execution proceedings were further delayed as same of the heirs of Sir Mohd. Yakub who had died issueless, were alleged to be evacuees and the custodian of Evacuee Property was impleaded as a party to the execution proceedings. Since nothing turns in this second appeal on the objections filed by Mujtaba Hasan or the result of the proceedings under the Administration of Evacuee Property Act all that is necessary to emphasize is that these proceedings contributed to the inordinate delay with which this matter has come up before this Court. Since we in this country have opted for continuance of the cumbrous procedure governing civil litigation introduced by the British, delay in the disposal of cases may be said to be inevitable. The courts have to administer justice in accordance with the procedure established by law and there is little they can do in the matter. After the sale had been confirmed the auction purchaser-appellant applied for delivery of possession under O. XXI, Rule 95, C. P. C. of the property which had been purchased by him. Mujtaba Hasan had died in the meanwhile and his heirs viz. , respondents 2 to 6 filed an objection against the said application. They contended that they were also co-sharers in their own right in the property and the appellant could not acquire any right or title in the property qua that share. The decree holder did not file any objection under R. 97 of Order XXI C. P. C. presumably as it was superfluous for him to do so.
(3.) THE execution court allowed the objection of respondents 2 to 6 by its order dated October 13, 1964. It held that respondents 2 to 6 had a share apart from the share inherited by them as heirs of Sir Mohd. Yukub in the property in dispute, and the appellant was not entitled to obtain possession as regards that share. THE execution court directed that symbolical possession can be delivered to the appellant in so far as the share of Sir Mohd. Yakub was concerned. In doing so the executing court purported to act in accordance with the provisions of law contained in Rule 96 of Order XXI of the C. P. C. The auction purchaser appellant felt himself aggrieved by the order of the execution court. He accordingly filed an execution appeal before the Distt. Judge. The said appeal has also been dismissed by the court of appeal below and the auction purchaser appellant has approached this Court in second appeal.;