JUDGMENT
Das, J.
1. Sometime in 1904, the present plaintiff instituted a suit against Sukurdi, the father of defendants Nos. 1–8 in this litigation to enforce a mortgage executed by Sukurdi in his favour in 1903. He obtained a decree and in due course took out execution and caused the mortgaged properties to be sold. The sale took place on 9th December, 1908, and the plaintiff himself purchased some of the properties for Rs. 1,018. He applied for possession and did obtain possession of some of the properties but failed to obtain possession of the properties which are the subject-matter of the present suit. On the 7th December, 1920, he instituted a suit out of which this appeal arises for possession of the disputed properties. The suit was resisted on various grounds. It was, contended by the defendants in the first instance that the disputed properties belonged not to Sukurdi but to his wife, who was recorded in the Record of Rights as the owner of these properties. It was also contended that Section 47, Civil Procedure Code, was a bar to the suit. It was lastly contended that the “Court had no jurisdiction to pass a decree which it did in Suit No. 9 of 1904.
2. So far as the first question is concerned, it has been held concurrently by the Courts below that the properties at no time belonged to the wife but that the entry was made in the Record of Rights as the result of a conspiracy between Sukurdi and his wife. In these circumstances the Courts below were right in ignoring the entry in the Record of Rights.
3. So far as the objection based on Section 47 of the Code is concerned, the Court below found that it was not tenable. It is obvious that execution came to an end with the sale and what took place afterwards could not be said to have taken place in execution. It was, therefore, competent to the plaintiff to institute the present suit.
4. The last question, however, is of some difficulty; but the Court below has declined to consider it on the short ground that there was no evidence to justify it going into the question. The objection as to jurisdiction was put forward on the ground that at the date of the institution of the Suit No. 9 of 1904, a settlement under the provisions of Regulation III of 1872 was actually proceeding and that, therefore, the Civil Court had no jurisdiction to entertain the suit. Now this objection was not taken in the Suit No. 9 of 1904. It was not taken in the trial Court in this suit. It was taken for the first time before the learned District Judge. Now, it is obvious that in order to succeed, the defendants have to establish that a settlement was actually proceeding in respect of the disputed properties. As the learned District Judge points out there is no evidence whatever on this point. It is contended by the learned Advocate appearing for the defendants-appellants that the case was grossly mismanaged in the Court of first instance and that it was open to the learned District Judge to take judicial notice of the fact that settlement was actually in progress. I do not think that it was the duty of the learned District Judge to make investigation of facts for himself, especially in favour of a thoroughly unmeritorious case. As there was no evidence before him that a settlement was in progress, the learned, District Judge was right in declining to consider the question.
5. The appeal fails and must be dismissed with costs.
Jame, J.
6. I agree.