Law: Civil Procedure Code (V of 1908)

Section: 47

(a) Mortgage-Mortgagor having two rights, and mortgaging such rights in simple form to two different mortgages-Suit by mortgage of subordinate right-Whether mortgage of superior right bound to set up his claim-Subsequent suit between them Whether bar of res judicata, applicable - Adverse possession Mortgage of superior right obtained possession by purchase at rent execution sale Whether such possession adverse to mortgage auction purchaser of subordinate right-Symbolical possession obtained through Court-When operates as interrup tion of actual possession-Civil Procedure Code (V of 1908), S. 47, O. XXI, rr. 95 8c 96.   Where the mortgagor having two rights in the land, one superior and the other subordinate, mortgaged in simple form such rights separately to two different mortgages, the mort gage of superior right is not bound to set up his claim in a suit by the mortgage of subordinate right for enforcement of his mortgage to which the former was made a party unless the latter impugned the title of the former and as such, in a subsequent suit between them the bar of res judicata is not applicable.   Radha Kishun v. Khurshed Hossain and others L R 47 I A 11 ref.   Where after the purchase by the mortgage of subordinate right in execution of his mortgage decree before he got actual possession, the superior right of the mortgagor was sold in execution of a rent decree to which he was a party and pur chased by the mortgage of superior right, in that sale the possession obtained by the latter becomes adverse to the former from the date of the delivery of such possession.   Symbolical possession obtained through Court operates as an interruption of actual possession only when the party obtaining such possession is not entitled to get actual possession.   Juggobundhu Mukherjee v. Ram Chandra Bysack I L R 5 Cal. 584 and Thakur Sri Sri Krishna Chanderjee v. Ram Bahadurj and others 22 C W N X30 fol,   (b) Interpretation----Decision of a Court is an authority for what it decides.   A decision of a Court is an authority for what it decides and should be read with reference to the facts of that case and not independently of them.  …