Bimalendra Nath Maitra, J. - (1.) The facts are not in dispute. At the instance of the decree - holder, opposite party, who held a grossee mortgage bond, the mortgaged properties were put to sale in the Chandernagore Munsiff's Court in the Money Execution Case no. 44 of 1954 for the interest of the mortgage and the property was auction - purchased by one Haradhan Sen (opposite party no. 8), who was none but the judgment debtor no. 5. The partition suit no. 38 of 1958 was filed by the judgment debtors nos. 1 to 3 in the court of the 1st Subordinate Judge, Hooghly, for partition. Then a pre-emption case was filed by the petitioner (Biswanath Pal) for purchasing the 8 annas share of the auction - purchascr, Haradhan Sen (judgment - debtor no. 5). Both the matters were heard together and the pre-emption case was allowed in favour of the petitioner, Biswanath Pal. Thereafter the decree - holder filed the Title Suit No. 24 of 1955 in the Chandernagore court for recovery of the principal and the balance of the interest on account of such grossee mortgage bond and obtained a decree. Then he initiated the Title Execution Case no. 4 of 1963 to execute that decree. The petitioner filed the present misc. case under section 47 of the Civil Procedure Code on the ground that the auction - purchaser (judgment debtor no. 5) of the Money Execution Case no. 44 of 1954 auction - purchased the property free from all incumbrances. Hence the present execution case for the enforcement of the notarial grossee mortgage could not be proceeded with.
(2.) The decree - holder, opposite party, raised an objection. The learned Munsif dismissed the misc. case. The petitioner preferred an appeal. The appellate court stated that in the sale proclamation, the decree - holder did not mention that the property was subject to any incumbrance. So, the auction-purchaser (judgment-debtor no. 5), Haradhan Sen, acquired the property free from all incumbrances and thus the execution case for selling the self same property could not be proceeded with. The decree - holder, opposite party, was estopped from urging that the previous Money Execution Case no. 44 of 1954 was subject to the lien of mortgage debt. The appeal was allowed and the execution case dismissed. Hence this appeal by the decree - holder.
(3.) It has been contended on behalf of the appellant that the mortgage was secured by a grossee mortgage bond. No registration was required under the law, as obtained at Chandernagore at the relevant time. The Chandernagore Merger Act or the Chandernagore Assimilation of Laws Act was not enforced at that time. It is true that the decree-holder did not mention his incumbrance in the sale proclamation. But that was a mere irregularity and it was not fatal to the proceeding. The case of Radhelal v. Kishorilal, in AIR 1935 Lahore 527 has been cited to show that where there was an auction sale of the judgment - debtor's property but the mortgage charge was omitted, the mortgagee is not debarred from taking action on the mortgage. The decree - holder is not estopped from putting the decree into execution and hence, the decision of the learned Munsif should be restored.;