Gudri Lal and Another Vs Jagannath Ram

Straight and Tyreell, JJ.@mdashWe are of opinion that the lower Courts have taken a wrong view in dismissing that part of the suit which relates to the share of Earn Tahal. The plaintiffs are the purchasers of the whole, property at a sale in execution of a decree obtained by their father, Durga Dayal, against Earn Tahal and Prag, and their purchase took place on the 3rd January 1884. No doubt at that time the defendant-respondent, Jagannath Earn, had a charge on the property by reason of the bond which was given him by Earn Tahal on the 4th April 1879; and on the basis of this bond he had obtained a decree from the City Munsif of Gorakhpur on the 9th September 1882. Now, of course, if the City Munsif of Gorakhpur had power to pass a decree on the basis of Jagannath Ram''s bond, and so to enable Jagannath Ram to enforce the decree by selling Ram Tahal''s share in the grove in Bansgaon, the plaintiffs could not maintain the present suit, because, not only was the charge of Jagannath Ram prior to their own, but a decree upon the bond had been obtained by him before the plaintiffs had purchased the whole grove. Unfortunately for the defendant-respondent, Jagannath Ram, his decree on the bond given by Ram Tahal in April 1879, can only be regarded as a simple money-decree, because the City Munsif of Gorakhpur had no power under the law to direct enforcement of hypothecation against Immovable property situate beyond the local limits of his jurisdiction; and that he was prohibited from doing so, is clear from the terms of Section 16 of the Civil Procedure Code. We do not think that the proviso to that section alters the position; and we dissent altogether from the remark of the Subordinate Judge, that Section 20 of the CPC meets the circum-stances. Our conclusion accordingly is, that the plaintiffs are entitled in this suit to have it declared that the decree in favour of the defendant-respondent upon the bond given to him by Ram Tahal was only a simple money-decree, and that, on the basis of that decree, no process in execution could issue in respect of the grove to oust the plaintiffs'' possession from any part of it. Whether or not the respondent can institute proceedings in any Court for enforcement of his lien, we are not concerned to discuss. The appeal is decreed with costs, and the decrees of the lower Courts modified by decreeing the plaintiffs'' claim with costs in all Courts.