Judgement

Appeal (No. 53 of 1919) from a judgment and decree of the Court of the Judicial Commissioner (September 5, 1917) reversing the decree of the District Judge of Hoshangabad (August 25, 1915).

In 1891 the agent for the Court of Wards, being in charge of the estate of the appellants under Act

XVII. of 1885, executed a mortgage of certain mauzas, the deed stating that the mauzas " together with all actual and reputed rights, easements and appurtenances to the same and all cultivated and uncultivated land, groves, abadi, sir, rents and profits such as jalker, banker and by whatever name the same may be styled or known, have been and are hereby hypothecated by way of mortgage to the mortgagees." In 1904 the mortgagees brought a suit in the District Court on the mortgage and on April 4, 1906, obtained a preliminary mortgage decree for over two lachs. The mortgagors (the present appellants) appealed to the Court of the Judicial Commissioners on the ground (inter alia) "that the lower Court erred in holding that the plaintiffs would be entitled under the terms of the mortgage to sell the cultivating rights in sir." The appellate Court having decided against the other grounds of appeal said with regard to that above set out " Both sides agree that it would be premature to decide what the position of a purchaser under decree absolute for sale will be in respect of the sir. In the list of the mortgaged property on the back of the lower Courts decree for the words with cultivating rights in sir, etc., the following will be substituted With all actual and reputed rights as detailed in the mortgage." Subject to the above modification in the decree the appeal was dismissed. A further appeal to the Privy Council was dismissed on April 8, 1913 (see Gulab Singh v. Seth Gokuldas. (( 1913) L. R. 401. A. 117.)) Meanwhile on August 25, 1908, a final decree for sale was made and the property was ordered (under Form C) to be sold "with all actual and reputed rights as detailed in the mortgage." Upon the decree being transmitted to the Collector for execution, he raised a question whether the terms of the order were sufficiently explicit; the matter was brought before the Judicial Commissioners, who said that "for the purposes of a sale the description given was full and sufficient; in any case no legal entry of the words with cultivating rights in sir-lands or without cultivating rights in sir-lands could have been made. Were the matter open we should have said that the words all actual and reputed rights in the sir-lands, included the right to cultivate the sir-lands. But upon the agreement of the parties, the Court which passed the decree expressly decided and decreed that there should be no interpretation of these general words between the parties. Form C, when drawn up in obedience to a decree for sale, can only follow the description of the property contained in the decree." They remanded the case for the disposal of the execution proceedings. Further difficulties as to the form of the sale decree were raised by the Collector. Eventually on July 23, 1913, the Chief Commissioner wrote as follows to the Collector “as the Civil Courts decree extends only to the sale of proprietary rights in sir, the Collector cannot sell the cultivating rights or put the purchaser in physical possession of the sir land but only of the proprietary rights thereof. If the original deed and the decree gives the purchaser the right to sue for the ejectment of the ex-proprietor he will not be prevented from doing so but on this point the Collector need express no opinion at the time of sale. This should be explained to bidders when the property is put up for sale."

The property was accordingly put up for sale under the order in the form above stated on October 3, 1914, the Chief Commissioners order contained in the letter above referred to being explained to the bidders. The respondent, the decree holder, who had permission to bid, was the purchaser for Rs. 1,07,