ABDUL HAMID KHAN MUBIN KHAN Vs. MOHOMED ALI HUMAYUN

JUDGEMENT

(1.) THIS is a second appeal in execution in which Mr. Chandrachud for the appellant has raised two questions of law.

(2.) THE decree giving rise to the execution application was obtained by the respondent against two persons, viz. Shaikh Taj Mahomed Shaikh Yunas and Shaikh Hasan Shaikh Yunas on l8bh October 1947, in Suit No. 732 of 1917. That was a suit filed by the respondent against the defendants claiming a decree for a sum of Rs. 1,775-5-0 and all costs of suit and also claiming a decree that if the defendants failed to pay the amount, the plaintiff should recover the said amount by sale of the property mentioned in Para. 1 of the plaint. There was a prayer for a declaration that the plaintiff had got a charge under Section 55, Transfer of Property Act, on the property in suit and that a decree to the effect that the plaintiff should recover the decretal amount by sale of the pro-party should be pissed, The decree, so far as material, runs as follows :

(3.) PURSUANT to this decree, the decree-holder filed on 11th December 1917, the present darkbast No. 1256 of 1947 to execute the decree against the defendants impleading the present appellant as an added defendant. He was impleaded because, according to the plaintiff, he was a purchaser of the property in dispute under a sale-deed executed in his favour on 8th July 1347. By the darkhast the respondent claimed to recover the amount mentioned in the darkhast by sale of the property. The appellant filed a written statement which is Ex. 14 in the case in which he raised various contentions including the contention set out in para, 3 of the written statement which was that the darkhast could not proceed against the immoveable house and that a statutory charge could not be placed upon that property. The executing Court overruled the contention, and in directing darkhast to proceed, ordered the charged property to be sold.