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Rahim Bukhsh vs Kishen Lal And Anr.

High Court Of Judicature at Allahabad|19 December, 1938


1. This is a second appeal by the plaintiff against a decree of the lower Appellate Court dismissing his suit. The following pedigree is relevant:
Amir Bakhsh (died 50 years ago)
2. Azim Uddin executed a simple mortgage in favour of defendant 1, Kishan Lal. After the death of Azim Uddin his property, which was one-fourth of the property of his father, was inherited by his widow, Mt. Saliman, and his brother, Rahim Bakhsh, the plaintiff. Defendant 1, Kishen Lal, then brought Suit No. 274 of 1927 against the plaintiff and defendant 2, Mt. Saliman, as the legal representatives of Azim Uddin, the mortgagor, and the suit was for sale on the simple mortgage of the property, the one-fourth share of Azim Uddin which had been mortgaged. The court passed a decree for the sale of the mortgaged property. In the sale proclamation, the mortgaged property was entered for sale, and the one-quarter share which belonged to Rahim Bakhsh personally and which he had inherited from his father was also wrongly entered for sale as part of the property mortgaged by Azim Uddin. No objection was taken by the plaintiff as a judgment-debtor to this incorrect description in the sale proclamation and no objection was taken at the time of sale and no objection was taken when the sale was confirmed and a certificate was granted to the decree-holder, Kishen Lal. When Kishen Lal applied for mutation, the plaintiff states that he became aware of what ho calls a fraud and he made an objection to the mutation which was dismissed. The sale had been previously confirmed and the plaintiff then filed the present suit without making any application to the execution Court for correction of the sale certificate. The trial Court granted a decree to the plaintiff, finding that the share of the plaintiff had been incorrectly included in the sale certificate. The lower Appellate Court agrees that the sale 'certificate incorrectly included property belonging to the plaintiff inherited from his father, but the lower Appellate Court holds that there is no right of suit to the plaintiff because his objection should have been taken in the execution Court under the provisions of Section 47, Civil P.C., and Order 21, Rules 66 and 92. The suit of the plaintiff therefore is barred. The lower Appellate Court has referred to the decision in Both Chand Mal v. Durga Dei (1890) 12 All. 313 a Full Bench ruling of five Judges. In that case the judgment-debtor died after the passing of the decree, and his legal representatives were brought on the record in execution proceedings to represent him. It was held that the questions which they raised as to property which they said did not belong to his assets in their hands, and as such was not capable of being taken in execution, were questions coming under Section 244(c), Civil P.C., 1882, and must be determined in the execution department and not by separate suit. This ruling has been followed in numerous cases, one of which is Imtiaz Bibi v. Kabia Bibi (1929) 16 A.I.R. All. 602.
3. Learned Counsel referred to a ruling of a Bench of this Court, Bulaqi Das v. Kesri (1928) 15 A.I.R. All. 363. In that case certain property was included in a sale on a simple mortgage decree, which should not have been included. The Court held that the judgment-debtor could bring a regular suit to recover the excess property sold and that such a suit was pot barred by Section 47, Civil P.C., or Order 21, Rule 92, Civil P.C. No mention in the ruling is made of the Full Bench ruling in Both Chand Mal v. Durga Dei (1890) 12 All. 313. Reference is made to a ruling of their Lordships of the Privy Council, Thakur Barmaha v. Jiban Ram (1913) 41 Cal. 590. That ruling was on appeal from orders in the execution department and was no authority for the proposition that a regular suit would lie by way of objection to an incorrect sale certificate. We therefore follow the Full Bench ruling of this Court and we dismiss this second appeal with costs.
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Rahim Bukhsh vs Kishen Lal And Anr.


High Court Of Judicature at Allahabad

19 December, 1938