question is their hereditary property, and was mortgaged by them in 1221 Fuslee to Gokul Chund for Rs. 4,100. On the 1st July 1814, Gokul Chund assigned the estate to Ajoodheea Pershad, his partner, on account of a debt. Ajoodheea retained possession till 1234 Fuslee, on his death, Mahanund, karinda of Eesurnath and Sheo Pershad (the sons of Ajoodheea), instituted a suit against Devee Pershad, brother of Doorga Singh, plaintiff, on account of malgoozaree, and obtained a decree. On the 9th August 1827, Chotee Lall, brother of Ajoodheea Pershad, got plaintiffs to execute a second mortgage to him for Rs. 5,000, being the amount of the submortgage and decree, and, with theconsent of the sons of the original mortgagee, Gokul Chund, the name of Chotee Lall was recorded in the Collector's books. Plaintiffs then instituted a suit for the redemption of the mortgage against the representatives of Gokul Chund and Ajoodheea Pershad, and a balance of Rs. 1,980-12-6 was found to be due to the mortgagee; on payment of which possession was ordered to be given to plaintiffs. This decree was affirmed in appeal under date 9th January 1843. Subsequently, Sheo Pershad and Jygopal instituted a suit in the Mirzapore Court against plaintiffs, on account of the amount of the original mortgage debt and interest thereon, equal to the principal, and, on the 26th July 1843, got a decree. Plaintiffs appealed to the Sudder Court, but while the appeal was pending, the decreeholders took out execution of their decree, and, on the 19th June 1844, brought to sale plaintiff's village, which was purchased by Sheikh Mohumed Buksh and Lalla Buddoo Lall for Rs. 10,800. On the 26th December 1844, the decree of the Mirzapore Court was reversed by the Sudder Dewanny Adawlut, and the plaintiffs (Sheo Pershad and Jygopal) nonsuited. The decree, in execution of which their estate was sold, having thus been reversed, plaintiffs urged that the sale itself must be annulled. The defendants, Buddoo Lall and Mohumed Buksh, auction purchasers, who alone defended the suit, argued, that as the sale was conducted with perfect regularity, in execution of the decree obtained by Sheo Pershad and Jygopal, it could not now be set aside. They, also, pleaded, that the wasilát account, filed by the plaintiffs, was altogether incorrect. The Principal Sudder Ameen was of opinion that the sale of the plaintiff's village was not invalidated by the reversal of the decree, in execution of which it was sold, as the decree had not been set aside at the time the sale took place, and no order had been received from the Court to postpone the sale, nor had the plaintiffs tendered security under the provisions of Regulation XIII. of 1808, to suspend execution of the decree obtained against them. Further, the decree of the Sudder Dewanny Adawlut contained no declaration that the sale, intermediately effected, should be null and void. No irregularity was apparent in the conduct of the sale, which would invalidate it, under the provisions of Regulation VII. of 1825. The Principal Sudder Ameen, also, referred to the provisions of Section 17 of Regulation V. of 1812, as declaring that, in such cases, an action would be for damages, but not for the reversal of the sale. The Principal Sudder Ameen having thus disposed of the main point in the plaintiffs' suit, the dismissal of that part of their claim, which related to wasilát, followed as matter of course. The Court are unanimous in holding that the decision of the Principal Sudder Ameen is opposed to the plainest principles of justice, and cannot be sustained. It is utterly absurd to declare that when the decree, in execution of which property has been sold, is reversed, in appeal, the sale nevertheless shall stand. The absence of any irregularities in the conduct of the sale, cannot confer validity on that proceeding, where the original right to sell has been revoked. The reference made to Section 17, Regulation V. of 1812 by the Principal Sudder Ameen is quite out of place; that law applying exclusively to cases of distraint of personal property, for arrears of rent, and a little more consideration would have prevented the Principal Sudder Ameen from falling into so grave an error as that of quoting it in support of his present judgment. The Court reverse the decision of the Principal Sudder Ameen, and annul the sale of the plaintiffs' estate, who will be entitled to recover possession under the decree obtained by them on the 9th January 1843, on payment of the amount declared to be due to the mortgagee's representatives. The Principal Sudder Ameen under the view taken by him of the case not having entered into the subsidiary question of the wasilát claimed by the plaintiffs, a matter which cannot be conveniently enquired into by this Court, the case is remanded to that functionary, with instruction to call on the parties for their respective evidence on this point, and to pass a decision thereon. The 11th June, 1851. Present: S. S. BROWN, Offg. Judge. CASE NO. 107 OF 1851. Special appeal from the decision of R. J. Tayler, Esq., Judge of Jounpore, dated 30th December 1850. SYED INAYUT HOOSSEIN, (Plaintiff), Appellant, versus MUSSUMAT HINGUN BEEBEE, (Defendant), Respondent. THE decision of the Judge, which briefly upholds the order of nonsuit passed by the Moonsiff in this case, is in the decisions of the month. A special appeal was admitted to try, whether the lower Courts had rightly nonsuited the plaintiff. The plaint states that defendant occupied by permission a house belonging to plaintiff's ancestor, Zoolficar Ali, which had descended to plaintiff. The house fell into disrepair, and defendant, during plaintiff's absence, appropriated and sold the materials, and afterwards promised to make good their value to plaintiff, but had failed to fulfil it, and the suit was brought for the recovery of Rs. 32, value of the same. Defendant replied that her husband had obtained the house in gift from Zoolficar Ali, and that the materials had been appropriated by her during Zoolficar Ali's life time without any objections on the part of plaintiff. It was also urged, in support of a plea of nonsuit, that the plaintiff had not specified whether the house was the hereditary property of Zoolficar Ali, or how the proprietary right had been acquired by plaintiff. If by virtue of inheritance, then the other heirs should have joined in the suit. The Moonsiff, to these assumed grounds of nonsuit, added another objection to the plaint, that it did not set forth in what year defendant's husband had obtained leave to occupy the house, and whether the permission were a written or verbal one. The order of nonsuit has clearly been passed on insufficient grounds. The plaintiff has not sued to establish an ancestral share in the property, and therefore any specification of the persons through whom he derived his title was unnecessary, neither is there any obscurity in the statement in the plaint that could be an impediment to the decision of the matter at issue between the parties, viz. the ownership, and the agreement to satisfy the demand. The order of nonsuit is reversed, and the case remanded to the Court of the Moonsiff, who will proceed with it as usual. Present: CASE No. 98 or 1851. Special appeal from the decision of A. Lang, Esq., Judge of Allahabad, dated 24th September 1850. SHEIKH AMUDEE AND OOMDUT-OONNISSA, (Plaintiffs), Appellants, versus CHAHUT-OONNISSA AND OTHERS, (Defendants), Respondents. THE particulars of this case are in the volume of the decisions for the month. The Judge ruled that it was incumbent on the mortgagee to issue the usual notice of foreclosure prescribed in Section 8, Regulation XVII. of 1806, on the party who held possession of the property by purchase at public sale as the legal representative" of the mortgager, and the authority of the decision of the Calcutta Court of the 1st September 1847, Sye Shunkur Chund, appellant, which appeared to the Judge to be not consonant with the requisitions of the law, was disallowed, and a nonsuit declared. A special appeal was admitted to try, whether the ruling of the Judge with regard to the Section 8, Regulation XVII. of 1806, was correct. The Court consider that the ruling of the Judge on this point must be upheld, and that a party who succeeds under a title derived from a public sale is as much the "legal representative" of the mortgager as the natural heir. They also concur in the Judge's opinion that the mere circumstance of the sole purchaser's cognizance of the property being liable to foreclosure will not absolve the mortgagee from the strict requisition of the law, in the service of the foreclosure notice on him, failing which, the penalty of nonsuit, under Construction No. 1140, will attach to the suit. At the same time, the Court are of opinion that the Judge has erred in considering the decision referred to by him to be at variance with his own conclusion on this point. In the case in question, the mortgager had, in the interim, executed a private transfer of his interests to a third party, but he had no power to constitute this party his "legal representative" in the mortgage contract, and it was ruled accordingly that such private transfer would not affect the service of the notice of foreclosure by the mortgagee, whose engagement was with the mortgager, and with him only. The cognizance by the party in possession of the issue of the notice was also incidentally mentioned; there can be no analogy between the case in the precedent and a compulsory transfer, carrying with it, prima facie, a valid title at law, as in the case before the Court. The appeal is dismissed. CASE No. 99 or 1851. A. W. BEGыIE, H. W. DEANE, Special appeal from the decision of PERSHADEE LALL, (Defendant), Appellant, versus MUSSUMAT BHAMA, (Plaintiff), Respondent. THE plaintiff brought a suit for proprietary possession of a thatched house and of some ground attached to it in the town of Khasgunge against six persons, and in his plaint he explained that three of the defendants, who occupied a portion of the ground as his tenants, had been included in the suit for form. These defendants, on notice being served, filed confessions of judgment. The Moonsiff dismissed the suit, rejecting the confessions of judgment as collusive; the Principal Sudder Ameen in appeal upheld the dismissal of the suit quoad three of the defendants, but was of opinion that a decree should have passed against the three who confessed judgment, which he considered to be of effect against themselves, although of no force against the other defendants. The Moonsiff's decision was accordingly amended, and a decree given against those parties. A special appeal was admitted to try, whether the Principal Sudder Ameen was right in decreeing against the parties who confessed judgment in the lower Court. The question of right in this case having been tried and decided between the plaintiff and those of the defendants who had pleaded to the merits, the admission of the claim by persons, who, by the plaintiff's own showing, had been unnecessarily made parties to the suit, could not benefit the suit, and the confessing defendants not being in possession of any portion of the right claimed, they had none to confess to. This part of the Principal |