Purchaser failing to refer the judgment for ascertaining the terms.

This Second Appeal arises out of proceedings in execution of a mortgage decree. The appellant is a Court-auction purchaser in execution of that decree. Respondents 1 to 3 claimed that they were entitled to the eastern half of the property purchased by the appellant. The proceedings commenced as an original suit in the first instance, but was subsequently converted into an application under section 47 of the Civil Procedure Code. Respondents 1 to 3 were the plaintiffs and the appellant was the first defendant. The first Court,the executing Court, dismissed the application, but on appeal by the appellant herein before the Court of Subordinate Judge of Tirunelveli, respondents 1 to 3 have been declared entitled to the property claimed by them. Hence this second appeal.

The facts are as follows:- The subject-matter of the dispute between the parties is a house within the limits of Melapalayam Panchayat. The entire house is described in the application as the first schedule. The portion claimed by the respondents 1 to 3 is described in the second schedule. The second schedule is the eastern half of the entire house. This property originally belonged to one Muhamad Abdullah Labbai. He died leaving behind him his son, Sahul Hamid, and two daughters, Asan Bathummal Bivi and Aminal Bivi. Respondents 1 to 3 are the children of Asan Bathummal Bivi. Asan Bathummal died a good many years ago. She had another son called Abdul Jaleel. The property devolved upon the heirs of Abdullah Labbai ; Sahul Hamid became entitled to a half share, and each of the daughters, Asan Bathummal and Aminal Bivi became entitled to a quarter. Aminal Bivi conveyed her quarter share in the house to respondents 1 to 3 and Abdul Jaleel under two deeds, dated 2nd June, 1946 and nth June, 1946. Abdul Jaleel relinquished his interest in this property and in the other properties belonging to Abdullah Labbai in favour of respondents 1 to 3 under a release deed, dated 15th March 1951. It will be convenient to refer to respondents 1 to 3 as the respondents in this Judgment. Thus, the respondents became entitled to the half share in the first schedule house. The other half share belonged to Sahul Hamid. In 1946, Sahul Hamid, claiming to be the exclusive owner of the property, executed a mortgage bond in favour of one Abdulla Taraganar. This was behind the back of the respondents. Unaware of this mortgage the respondents filed a suit for partition in Original Suit No. 449 of 1951 on the file of the District Munsif, Tirunelveli claiming their half share in all the properties of Abdullah Labbai including the suit property. The mortgagee, Abdulla Taraganar was not impleaded as a party Sahul Hamid, who was the first defendant in that suit, appears to have raised a contest disputing the respondents’ claim for a share. Abdulla Taraganar, the mortgagee, instituted a suit to enforce the mortgage, Original Suit No. 420 of 1952 on the file of the same Court, but he, however, impleaded the respondents, as defendants 2, 3 and 6. They contended that Sahul Hamid was not competent to execute a mortgage, as if he was the full owner of the property, and that the mortgage would not bind their half share. Finding himself in a difficult predicament, Abdulla Taraganar discreetly exonerated the respondents from the mortgage claim. It is specifically stated in the judgment in Original Suit No. 420 of 1952 that the respondents are exonerated from the suit. But, unfortunately, however, the decree that was drafted in pursuance of that judgment made it appear, as if all the defendants in the suit, the mortgagor Sahul Hamid and the present respondents, were jointly and severally liable to pay the mortgage decree. Nobody noticed this defect in the decree, at the time when it was drafted. The partition suit filed by the respondents ended in a final decree on 5th February, 1954. There was a partition, of all the assets of late Abdulla Labbai by metes and bounds and eventually the eastern hal