Judgement

Appeal from a judgment and decree of the High Court (May 19, 1908) affirming a decree of the third Subordinate Judge of Mozufferpur.

The suit was brought by the deceased appellant claiming a declaration that an auction sale held on December 15, 1891, was null and void and that under it no title, passed to the respondents, the purchasers, and those claiming under them, for possession and other relief. Upon the death of the plaintiff in 1910; the appellant Musammat Ram Dei was brought upon the record as her heir and legal representative; there were also brought, upon the record the devisees of the property in suit under a will of Jeuna Bahu, probate having been granted without prejudice to the contention of Ram Dei that the testator had no right to dispose of the property.

The circumstances in which the auction sale of December 15, 1891, was held appear from the judgment of their Lordships.

The decree of April 17, 1890, obtained by the mortgagors under the mortgage of March 24, 1888, against the administrator of the estate of the deceased mortgagor declared that the amount due was Rs. 19,081 principal and interest, and ordered, in the usual form, that in default of payment with costs by July 19, 1890, the mortgage property be sold by auction, and further ordered as follows "It is also ordered and decreed that if the sale proceeds be not sufficient to cover the whole of the decretal amount, then the defendant do pay to the plaintiff the balance of the decretal amount, with interest at 6 per cent, per annum till the date of realization from the estate of the aforesaid Bal Krishan, deceased, and if the defendant does not admit the estate to be sufficient to cover the decretal amount then a statement be prepared of the properties of the aforesaid Bal Krishan, and that the estate be kept under the management of the Court."

The suit was dismissed by the Subordinate Judge and his decision was affirmed by the High Court.

1918. Oct. 17, De Gruyther K.C. and Dube for the appellants other than Ram Dei; Parikh for the appellant Musammat Ram Dei.

Sir Erle Richards K. C., and Sir William Garth for the first respondent.

The argument on behalf of the appellants sufficiently appears from the judgment. The respondents were not called upon.

1918. Dec. 3. The judgment of their Lordships was delivered by

LORD BUCKMASTER. In this case the appellants challenge the validity of an execution sale of a 16 anna share in certain mauzas appertaining to Mahal Sonkarsa. The sale took place on December 15, 1891, pursuant to an order of attachment of November 5, 1891, issuing out of the Court of the Subordinate Judge of Mozufferpur, and made in execution of a decree of the same Court passed on April 17, 1890.

There are two grounds upon which this case rests the first that the decree of April 17, 1890, was, so far as it formed a foundation for the sale of this property, ultra vires; and, secondly, that at the date of the sale there was, in fact, another order existing for the sale of the same property. For reasons that their Lordships will state, they think there is no efficacy in either of these contentions.

The facts that preceded the litigation out of which this appeal has arisen are very simple, though they have been the cause of many legal complications. On March 24, 1888, Bal Krishan Lal entered into a bond in favour of the members of the firm of Thomas and Co., to secure repayment of sums advanced to him by them up to the limit of Rs.55,000; and, to secure this repayment, entered into a covenant to execute in their behalf a full and complete mortgage of the block and crop of the Buriarpur indigo concern.

Bal Krishan Lal died a month after the execution of this deed on April 24, 1888, leaving a son by his first wife, his second wife (the appellant, Musammat Jeuna Bahu, his widow), and four illegitimate children by a Mohammedan concubine.

Questions-arose about the right to obtain letters of administration to the estate of Bal Krishan, which are irr