HARI LAL AGRAWAL, J.

1. This appeal by defendant N0. I, arises out of a suit filed by the plaintiff-respondent under the provisions of Order XXI, Rule 63 of the Civil P.C., for a declaration that the property fully described at the foot of the plaint purchased by him in court sale, was not liable to be sold in the mortgage decree obtained by defendant No. 1. The relevant facts, briefly stated, are as follows :-

The plaintiff had purchased 3 bighas 6 kathas and 2-1/2 dhurs of land appertaining to plot No. 2843 and others under khata Nos. 452 and 395, being the other half of the disputed lands, from Loknath Tiwary by a sale deed dated 26-11-1930 disposing of his half share in the 6 bighas and odd land. The remaining half share was sold by Khublal Tiwary, his uncle, to Ganga Bishun Tiwary (defendant No. 2). Defendant No. 2 first created a mortgage over the property in favour of the plaintiff and subsequently sold the land to one Jumman Mian, however, leaving in deposit the mortgage money, by a registered deed of sale dated 4-6-1938.

2. These are the admitted facts of this case; Raghunandan Tiwary and Khublal Tiwary were brothers. They had equal interest in a piece of land measuring 6 bighas 12 kathas and 5 dhurs situated in village Belsa, half of which is the subject matter of the suit Raghunandan had two sons, Loknath and Uma Dutt. Uma Dutt, however, died leaving his widow Rati Kuer, Loknath and Rati Kuer sold their half share to the plaintiff on 26-11-1930 and according to the plaintiffs case, he has been coming in possession over the land in question by virtue of his purchase.

3. Khublal, the other co-sharer of the half interest, also sold his share to defendant No. 2 as already said earlier Jumman Mian, the purchaser from defendant No. 2 died leaving behind three sons and a widow. The sons are defendant Nos. 4 to 6 and the widow is defendant No. 7 in the suit. The mortgage suit brought by the plaintiff on the basis of the simple mortgage bond was decreed and defendant Nos. 4 to 7 paid up the dues and thus satisfied the decree.

4. The plaintiff brought another suit, namely Money Suit No. 423 of 1952 against defendant Nos. 4 to 6 for realisation of some handnote dues amounting to Rs. 642/-. This suit was also decreed and the decree was put in execution against the disputed land, namely, half share of Raghunandan Tiwary. In execution of this decree the plaintiff purchased the disputed land in Court auction and delivery of possession was effected on 17-10-1957 .

5. Ganga Bishun, defendant No. 2, had also executed a simple mortgage in favour of defendant No. 1 the appellant before us, who happened to be his maternal cousin, in respect of the disputed land. This mortgage was concealed from Jumman Mian. Title mortgage suit Number 156 of 1951 was accordingly instituted by defendant No. 1 against defendant No.2 and defendants Nos. 4 to 7, the purchasers of his interest. In this suit a preliminary decree was passed on 26-3-1953 and an application for final decree was made on 3-12-1957 i.e. beyond the prescribed period of 3 years from the date of the preliminary decree but nonetheless the final decree was prepared and put in execution in Execution Case No. 1191 of 1958 and the property in suit was purchased by defendant No. 1, The plaintiff preferred a claim under O.XXI R.58 of the Civil P. C., but the executing Court by its Order dated 15-9-1970 dismissed the same and accordingly the plaintiff filed the present suit. The plaintiff based his claim by virtue of his purchase of the suit land in Execution Case No. 306 of 1956 on 13-3-57 where the decree was passed in Money Suit No. 413 of 1952 on the basis of the handnote as already stated earlier, and in this way his case was that the right, title and interest in the suit property were already acquired by him which could not be resold in execution of the final decree in mortgage suit. The suit was contested by defendant No. 1 and one of the grounds urged on his behalf was that the