Execution purchaser takes only the mortgagor's redeemable interest; rejected objection bars later title defence.

An unsuccessful objector under Order XXI Rule 58 CPC, who does not file a suit under Order XXI Rule 63, cannot later reassert the same title in defence; the rejected objection remains conclusive as to the right then claimed, and symbolical possession in execution is effective against the judgment-debtor. The execution purchasers, having taken only Amar Singh's interest, were entitled only to that redeemable share in the house and could not claim a greater interest without discharging the mortgage burden attached to it. The plaintiffs were therefore confined to possession of one-half of the house, subject to payment of the mortgage amount on Amar Singh's share.

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Issues: (i) Whether a party whose objection under Order XXI Rule 58 of the Code of Civil Procedure failed and who did not institute a suit under Order XXI Rule 63 could later assert title to the property in defence. (ii) Whether the purchasers in execution were entitled to possession of one-half of the house or only one-fourth, and whether such possession was subject to redemption of the mortgage money relating to Amar Singh's share.

Issue (i): Whether a party whose objection under Order XXI Rule 58 of the Code of Civil Procedure failed and who did not institute a suit under Order XXI Rule 63 could later assert title to the property in defence.

Analysis: The order dismissing the objection under Order XXI Rule 58 was conclusive as to the right then claimed. Since no suit under Order XXI Rule 63 was filed, the unsuccessful objector could not re-agitate or set up the same title in later proceedings. The defence based on the sale deed had therefore to be excluded. Symbolical possession delivered in execution was treated as effective possession against the judgment-debtor.

Conclusion: The defendants were precluded from asserting title based on the rejected sale deed.

Issue (ii): Whether the purchasers in execution were entitled to possession of one-half of the house or only one-fourth, and whether such possession was subject to redemption of the mortgage money relating to Amar Singh's share.

Analysis: The plaintiffs had attached and purchased Amar Singh's interest, which on the relevant facts was the equity of redemption in half of the house. The later sale relied upon by the defendants could not be used against the plaintiffs in this litigation. Since the plaintiffs stepped into Amar Singh's position, their right was limited to his redeemable interest and they could not claim more than that interest without satisfying the mortgage obligation attached to it.

Conclusion: The plaintiffs were entitled to partition and possession of one-half of the house, but only on payment of Amar Singh's share of the mortgage amount due under the 1925 mortgage.

Final Conclusion: The appeal succeeded in part, the plaintiffs' share was enlarged to one-half, and the matter was sent back for partition and decision of the remaining issues consistent with that determination.

Ratio Decidendi: An unsuccessful objector under Order XXI Rule 58 of the Code of Civil Procedure who does not sue under Order XXI Rule 63 is barred from later asserting the same title, and an auction-purchaser of a mortgagor's interest takes only the redeemable interest that the judgment-debtor possessed.

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