Akhauri Herambo Narain Sinha vs Jamuna Sonar

Macpherson, J.—This is an application by the liquidator of the Friends Co-operative Society, Dumraon, for revision of the order of the Munsif of Buxar allowing an application under Order 21, Rule 97, Civil P.C., in respect of 15-16ths of the property in dispute.

The petitioner filed a certificate under he Bihar and Orissa Public Demands Recovery Act 1914, against one Thakur Prasad and notice u/s 7 was served on 30th June 1930. One Piari Kuar applied on 8th December 1930, for execution of her money decree against 13 persons, being Thakur Prasad and other members of his joint Mitakshara family. In this execution the petitioner asked that his charge on the property in suit consisting of houses which were to be sold in execution be declared. But the Court did not grant a declaration of the charge but only directed notification of the petitioner''s charge u/s 8 at the time of sale and the High Court on revision, while acknowledging the existence of the charge, declined to make the declaration as the sale had taken place. On 8th April 1931, the present opposite party purchased the property at the sale in execution of Piari Kuar''s decree. The petitioner obtained stay in the High Court which lasted from 8th May till 24th November 1931.

When the property was on sale under the Public Demands Recovery Act at the instance of the petitioner the opposite party, on 25th May 1931, filed a claim to it u/s 21 which was dismissed on 4th June 1931, on which date the petitioner purchased the present property in dispute in the certificate sale. He obtained delivery on 28th September 1931. In February 1933 the opposite party applied for delivery of possession of the property purchased by him but could not obtain it as the petitioner was found to be in possession. The opposite party applied under Order 21, Rule 97 with the result already mentioned.

Now at the certificate sale only the right, title and interest of Thakur Prasad, judgment-debtor, passed. The contention of the present applicant however was that Section 25, Public Demands Recovery Act, operated to make the decision of 4th June 1931 conclusive against the opposite party who had not brought within one year of the date a suit to establish his title to the property his petition in respect of which was dismissed u/s 24.

The learned Munsif negatived the contention on the ground that as the certificate Court had no jurisdiction to attach and sell or give possession of the share in the family property to the members of Thakur Prasad''s family who were not named in the certificate, the claim u/s 21 of the present opposite party and the order u/s 24 could not have related to 15/16ths of the property. He accordingly allowed the opposite party to take out dakhaldehani afresh with regard to 15/16ths of the houses in question and directed him to be put in possession jointly with the opposite party. On behalf of the petitioner it is urged that as the petitioner was clearly in possession on his own behalf in good faith, no other consideration could arise, that (as indeed the Munsif himself conceded in so many words) the question of title could not be gone into and that the order for joint possession is unsound.

For the opposite party Mr. Parmeshwar Dayal relies mainly upon the provisions of Section 26(1) of the Act, which sets out that

where property is sold in execution of a certificate there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale, even though the property itself be specified,

and urges that the petitioner could not be in possession in good faith. There can be no doubt, however, that the property specified for sale and the property which was sold of which delivery of possession was given included the property now in dispute. There is absolutely no reason to believe that the petitioner was not in possession on his own account. In my judgment the learned Munsif has clearly acted with material irregularity in the exercise of his jurisdiction.

One cannot help seeing that he did not consider only the one question which was open to him, namely whether the petitioner was "claiming in good faith to be in possession on his own account," but permitted himself to be influenced by the fact that the remedy of the opposite party by suit had become barred, though if it still existed the opposite party would, on the findings of fact of the Munsif, have been entitled in such suit to all but the 1-16th found to be the share of Thakur Prasad, certificate-debtor. Mr. Parmeshwar Dayal urges that the petitioner was not in possession in good faith of the whole of this property from the date of delivery of possession to him. I am unable to agree.

The definition of the Penal Code under which,

nothing is said to be done or believed in good faith which is done or believed without due care and attention,

is not applicable. In ordinary language good faith is opposed to bad faith and not to negligence, and this is the view ordained in the Bihar and Orissa General Clauses Act, which sets out that

a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.

It is not enough therefore to indicate that the petitioner must have known the provisions of S.26(1) and that the certificate-debtor Thakur Prasad was only a member of a joint family so that only the right, title and interest of Thakur Prasad could pass at the sale. Indeed it would be most unreasonable to affect the auction-purchaser with such knowledge.

He may well have been mistaken, but he did honestly hold the view that he was really entitled to the possession of the property purchased by him, of which the Court had given him possession. His contention was that the loan which was the basis of the certificate-debt had been taken by Thakur Prasad on behalf of himself and the joint family. Mr. Parmeshwar Dayal has further attempted to show that the opposite party''s application for release of the property from sale which purports to be under Sections 21 and 22 of the Bihar and Orissa Public Demands Recovery Act, 1914, may be taken to refer only to the share of Thakur Prasad, judgment-debtor, and not to the whole of the property. Therein he fails. The petition sets out that the portion specified below of the property advertised for sale had been purchased by the petitioner on 8th April 1931, and the judgment-debtor ceased to have any title thereto after that sale, and it could not be sold for satisfaction of his debts. The opposing contentions therefore were that the property specified could, and that it could not be sold in the certificate sale. Rightly or wrongly the certificate officer held that the whole property on sale could be sold in execution of the certificate.

That and not merely l/16th of it was the property of which the petitioner obtained delivery of possession, and he was certainly in possession of it bona fide on his own account.

The opposite party could only get possession of it or any part of it if in the suit contemplated by Section 25 he established that such property or part thereof was not that of Thakur Prasad liable to sale in execution of his certificate debt. Further, no such suit being brought within limitation the order u/s 24 is conclusive. Mr. Parmeshwar Dayal finally urges that the High Court ought not to interfere in revision inasmuch as the order is just.

But, in the first place, it is not so clear, as is suggested, on which side on a broad view equity lies, and again where the conditions set out in Section 115 are present, a summary view of justice is frequently not a conclusive or even very safe guide especially where the real obstacle in the way of the opposite party is a statutory bar of limitation. The rule is made absolute with costs and the application under Rule 97 is rejected; pleader''s fee, Rs. 16.