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Judgment
The petitioner was a mortgagee in respect of three mortgage bonds executed by one Rambujhawan Pande, one in 1916 and two in 1917. He sued on the three bonds and obtained a final decree on the 24th of November 1924. Execution was applied for in 1925, but as a result of a compromise between the decree-holder and the judgment-debtor the-latter, on the 18th of November 1925, executed in favour of the petitioner (who was the decree-holder) an ijara deed by which the petitioner was put into possession. The consideration for the ijara was stated to be Rs. 84,000 part of which was applied for the satisfaction of the mortgage decree and part was paid in cash. In the meanwhile Rambujhawan, on the 23rd of June, 1918, had executed a mortgage bond in favour of opposite parties 1 and 2 who sued on their bonds in 1928 impleading the petitioner and obtained a decree for Rs. 2,000 odd.
In execution of this decree the property that was mortgaged to opposite parties 1 and 2 was ordered to be sold, subject to the petitioner''s encumbrances. Opposite parties 1 and 2 were the auction-purchasers. On the 8th of December 1932, they applied for delivery of possession and delivery of possession was ordered without notice to the petitioner. In January 1933, the petitioner made an application asking that the order for delivery of possession be recalled or that it be treated as an order under Rule 96 and not under Rule 95 of Order 21, C.P.C. That application was rejected.
Learned Counsel for the petitioner contends that there was no jurisdiction for the passing of an order under Rule 95 in the circumstances of the case and he refers to a decision of the Bombay High Court. Gangadhar Dhanjishet Vs. Lakshman Mahadev Kulkarni, where, in somewhat similar circumstances it was held that there was no jurisdiction to pass an order under O.21, Rule 95. Their Lordships pointed out that the puisne mortgagee''s right, when he is not a party to the first mortgagee''s suit, is limited to a right of redemption or sale of the mortgaged properties subject to the lien of the first mortgagee or auction-purchaser on a decree by the latter and that he cannot compel the first mortgagee to part with possession without redeeming the first mortgagee.
The effect of the orders passed by the Court below, if put into execution, will be to eject the petitioner who is in possession and whose possession is not on behalf of the judgment-debtor or under a title created by the judgment-debtor subsequent to any attachment of the property.
The result is that this application succeeds and the order of the Court below is set aside. The petitioner is entitled to his costs; hearing fee one gold mohur.