SIDDHARTHA VARMA,J. - (1.)This is a defendant's second appeal filed against the judgement and decree dated 11.7.1984 passed by First Appellate Court.
(2.)The suit was filed by the plaintiff-respondent no. 1 with a relief for declaring the auction of House No. 237, Dondipur, Allahabad, held on 20.11.1975 and confirmed on 26.11.1975 as illegal and void and that he was the owner of it. A further relief for possession was also made by the plaintiff. The plaintiff's case was that he had purchased the house from one Abdul Majid- the defendant-respondent no. 4 by means of a registered sale deed dated 4.7.1970. He has alleged that when on 2.2.1976 the plaintiff came to know through his tenant that the house in question had been sold in auction for Rs. 4,000.00 in lieu of a loan that was taken by Abdul Majid, he filed the suit, claiming that when the property comprising in House No. 237, Dondipur, Allahabad, was sold by Abdul Majid to the plaintiff Som Nath on 4.7.1970 then the same could not have been sold in auction on 20.11.1975. The defendant-appellant Bashir Khan who was the auction purchaser had contested the suit and claimed that by the agreement dated 22.3.1965 Abdul Majid had entered into an agreement with the State of Uttar Pradesh that he would return the sum of Rs. 7,000.00 and the interest thereon in monthly instalments and that if he defaulted then the amount could be recovered from the property which was mortgaged to the creditor or "from any other property" of the borrower. The defendant had relied upon paragraph nos. 2, 3 and 4 of the agreement and submitted that the borrower Abdul Majid had, in fact, by the agreement dated 22.3.1965, agreed that if he was unable to pay the loan amount then the same could have been recovered from him by selling off any of his properties.
(3.)The trial court, after framing nine issues, found that the property in dispute, as per the agreement dated 22.3.1965, was a mortgaged property and, therefore, was rightly sold in auction.