RAM KISHUN Vs. LALTA SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that a certain house is not liable to be attached and sold in certain execution proceedings, and for a perpetual injunction restraining the principal defendants from taking any such proceedings.

(2.) It appears that one Murtaza Khan obtained a decree for sale against Bandhan. In execution of the decree the mortgaged property was sold and purchased by Lalta Singh, defendant 1. This defendant deposited the money in Court and Murtaza Khan withdrew the amount. Subsequently a minor Ram Prasad brought a suit for setting aside the sale, and got it held that the property did not belong to Bandhan. That judgment was affirmed on appeal, The property having gone out of the auction purchaser's possession he applied for a refund of the amount of the purchase-money. Murtaza Khan filed some objections but they were disallowed and he was ordered to repay it. While a revision on behalf of Murtaza Khan was pending, he obtained a postponement of the execution on the present plaintiff, Ram Kishun, standing as surety for the payment of the amount. Ram Kishun filed an unregistered security bond purporting to hypothecate another house. The deed further contained a covenant: if the entire decree money cannot be recovered from the said property, I and ray lawful representatives shall be liable for payment of the amount due.

(3.) The revision was ultimately dismissed Lalta Singh first tried to get the house included in the security bond sold. A warrant of attachment was issued but the amin reported that the boundaries did not tally, and that the person in actual occupation of the house claimed that it did not belong to Ram Kishun. After this the decree-holder applied on 18 March 1924 that the surety had deceived the Court and that the house, purporting to have been hypothecated, did not belong to him, and prayed that the Court might order realization of the decretal money from the surety personally.