Srivastava, J. - (1.) This case was filed as a First Appeal from order, but as the Bench before which it was put up for admission was of the view that it could be entertained only as an application in revision it has been converted into a Civil Revision.
(2.) One Zafar Husain was the owner of the Properties in dispute. On 9th June 1926 he made a simple mortgage in respect of the properties in favour of Nawab Muzammiluallah Khan for a consideration of Rs. 26,000. On 20th April, 1928 he made a second simple mortgage of the properties in favour of one Kishan Lal. Zafar Husain died after making these mortgages and was succeeded by his mother Smt. Meharun-nissa his widow Srimati Faruqi Begam and a sister Smt. Batul Fatma. The applicant before us is the husband of Smt. Batul Fatma. On llth January, 1932 the applicant purchased the mortgage rights in respect of the second simple mortgage of Zafar Husain from the mortgagee Kishan Lal. A suit (Suit No. 136 of 1932) was then filed on behalf of the first mortgagee for the recovery of the mortgage debt by the sale of the mortgaged properties. The applicant who was a subsequent mortgagee of the properties at the time of the suit was, however, not impleaded in that suit as a party. A preliminary decree was passed in the suit on 27th May, 1933 and was made final on 4th August 1934. On the coming into force of the Agriculturists Relief Act, an application was made by the judgment-debtors under Sections 4 and 5 of the Act for the amendment of the decree and the decree was amended on 3rd February 1937. The decree was made payable by instalments. The applicant who was the second mortgage filed a suit on the basis of his own mortgage on 19th April, 1940 and sought to realise the amount due to him by the sale of the mortgaged properties. This suit was registered as Suit No. 26 of 1940. He too did not implead the prior mortgagee in his suit as a party. The suit was decreed. He got the decree executed and himself purchased the mortgaged properties in execution of the decree on 6th November 1943 and succeed ed in getting possession of the property as auction-purchaser. A default having been made in the payment of instalments of the decree of the prior mortgagee it was put in execution on the 31st of May 1948. In this application for execution the prior mortgagee impleaded the applicant also as a party on the ground that he was a transferee pendents lite. The applicant filed an objection in the executing Court in which besides questioning the correctness of the amount claimed he raised two other contentions. He urged in the first place that the application was time-barred. His second contention was that the execution could not proceed against him as he was no party to the decree which was being sought to be executed. If the prior mortgagee wanted to enforce his claim against him he ought to have implesded him in his suit. The mortgage of the prior mortgagee could be enforced against him only by a regular suit.
(3.) Both these objections were rejected by the executing Court but it held that the decree-holder was entitled to Rs. 26.751-6-0 only the sale of the properties (sic). It, therefore, declared the amount due as Rs. 26,751-6-0, but dismissed the rest of the applicant's objection.;