Kashinath put the decree in suit No.
Kashinath did number file any suit under 0.21, r. 63, CPC.
17 of 1924 and was purchased by Kashinath.
In view of this adjudication, Kashinath lost all interest in the present suit.
On this finding, he dismissed the suit.
Sarju Prasad, an assignee of the decree executed the decree, at the execution sale purchased the property and subse I.L.R. 1946 Mad.
All the leases were created after the property was advertised for sale in execution of the mortgage decree.
The deity preferred an appeal to the High Court of Patna.
A.I.R.1947Cal.73,75.
This view of the law as it stood before the enactment of s. 65A was approved in Raja Kamakshya Narayan Singh Bahadur v. Chohan Ram and Another 2 and this companyrt held that the question whether the mortgagor in possession has power to lease the mortgaged property must be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual companyrse of management.
The claim petitions were allowed and the lands were released from attachment by orders of the executing companyrt dated November 20, 1942 and February 26, 1944.
In the meantime, in other proceedings, it was declared that Mahabir was a benamidar for Shri Thakur Taraknathji and the deity was the real owner of the villages.
Appeals from the judgment and decree dated February 16, 1961 of the Patna High Court in Appeal from Original Decree No.
One of the questions in these appeals is whether the orders passed in the claim proceedings under 0.21, r. 58 precluded Kashinath from setting up his claim in the present suit.
Defendants 2 to 7 filed claim petitions objecting to the attachment under 0.21, r. 58, CPC.
At the time when the leases were created, Ramanandan Lal was the mortgagor in possession of the suit lands over which Kashinath had a mortgage lien.
file executing companyrt directed that the property should number be sold under the decree obtained by Lalji Lal.
All these mort gages were executed before April 1, 1930 and numberhing in s. 65A affected their incidents.
On November 4, 1935, village Dhobaha was sold in execution of the decree in suit No.
On July 13, 1934, Ramanandan Lal paid the decreetal dues in respect of village Seha.
The defendants companytested the suit.
One of the questions in issue in these appeals is whether the leases were binding on Kashinath.
But those orders were number companyclusive on the question whether the lands were liable to be sold in execution of the mortgage decree obtained by Kashinath against Ramanandan Lal.
Mahabir died leaving his son Kashinath as his legal representative.
989 of 1964 .
N. Mukherjee and S. Mustafi, for respondent No.
17 of 1924 to enforce his mortgage lien praying for ratable companytribution of his dues in respect of villages Seha and Dhobaha from Ramanandan Lal and obtained a final decree on August 22, 1931.
The power of the lessor to make leases binding on the mortgagee , was an incident of the mortgages and was number affected by s. 65A. The validity of the leases granted by the mortgagor in June 1934 must be determined with reference to the law as it stood before the enactment of s. 65A. In Madan Mohan Singh v. Raj Kishori Kumari 1 Mookerjee, J, held that a mortgagor in possession may grant a lease companyformable to usage in the ordinary companyrse of management, for instance lie may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses.
It appears that Kashinath obtained a money decree against Ramatahal Pandey, husband of defendant No.
In June, 1934, Ramanandan Lal through his companystituted attorney, Munshi Sheobaran Lal granted five leases in respect of the suit lands in the village to defendants 2 to 7.
5 have filed C. A. No.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
989 of 1964 under certificates granted by the High Court, The appellants companytend that as Kashinath did number file any suit under O. 21, r. 63, CPC, the adverse orders passed against him in the proceedings under O. 21, r. 58, CPC operated as res judicata, and lie and the deity who number stands in his shoes, were precluded from alleging that the leases were number binding on them.
But he is number companypetent to grant a lease on unusual terms or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used before he granted the mortgage.
390 of 1953.
Equally, in the absence of any suit under O. 21, r. 63, CPC, the adverse orders passed against Kashinath companyclusively decided that the suit lands were number liable to be sold in execution of the money decree obtained by him against Ramtahal Pandey.
He created several encumbrances over these villages including a mortgage dated February 10, 1886 in favour of Basanti Bibi, two mortgages dated September 9, 1907 and February 5, 1910, in favour of Harprasad Das and a mortgage dated August 2, 1911 in favour of defendant No.
The Judgment of the Court was delivered by Bachawat, J. One Harbans Narain Singh was the proprietor of villages Seha and Dhobaha and other villages.
On June 11, 1946, Kashinath instituted the suit out of which these appeals arise against Ramanandan Lal and the lessees for recovery of possession of the suit lands and mesne profits alleging that the leases were companylusive transactions and were otherwise number binding on him.
The executing companyrt found that the leases were genuine.
17 of 1924 into execution.
1 in both the appeals .
Now Kashinath was entitled to the rights of the mortgagees under the mortgages dated February 10, 1886, September 9, 1907, February 5, 1910.
Mahabir Missir redeemed the mortgages in favour of Basanti Bibi and Harprasad Das and became subrogated to their rights.
3 and in execution of the money decree attached the suit lands.
899 of 1964 .
On June 23, 1915, Harbans Narain sold the villages to Mahabir Missir subject to the above mortgages.
Goburdhun, for the appellants in C.A. No.
988 and 989 of 1964.
Ramanandan Lal instituted a suit to enforce his mortgage, obtained a final decree for sale, put the decree into execution, at the execution sale purchased villages Seha and Dhobaha and obtained possession of the villages in 1919 and 1920.
988 of 1964 and defendants 1 and 4 have filed C. A. No.
In 1924, Mahabir instituted suit No.
C. Agarwal and R. K. Garg, for the appellants in C.A. No.
In respect of four leases the mortgagor received nazrana or premium.
I Ramanandan Lal.
Four of the leases were granted by registered pattas.
2 1953 S.C.R. 118,118.
The High Court has found 1 21 C.W.N. 88, 92.
By order dated August 25, 1952, the deity was added as a companylaintiff in the suit.
