JUDGMENT

Malik, J. - The facts of this case are given in the referring order dated 15th April 1946.

2. One Fateh Bahadur Singh had executed a simple mortgage for Rs. 1700 in favour of Nandan Sahu on 26th May 1911. The mortgagee filed a suit, No. 825 of 1923, against Fateh Bahadur Singh and obtained a preliminary decree on 7th April 1924. A final decree for sale was passed on 24th February 1925, for Rupees 37,525 odd. Jogendra Nath Singh, son of Pateh Bahadur Singh, then filed a suit, No. 77 of 1927, for a declaration that the property included in the mortgage was joint family property, that the mortgage was without legal necessity and that he joint family was not, therefore, bound by the decree or liable for payment of the mortgage debt. During the pendency of that suit the whole of the mortgaged property was sold in execution of the decree in suit No. 325 of 1923 and was purchased by the decree-bolder. The suit of Jogendra Nath Singh was dismissed by the trial Court on 10th April 1928, and the auction sale was thereupon confirmed and the auction purchaser got possession of the property on 28th December 1928.

3. Jogendra Nath Singh filed an appeal (First Appeal No. 252 of 1928) in thi