Banku Behari Bose and Another vs Dwarka Nath Dass

Pigot, J.—Defendant No. 2 had a sixth share in a jama, comprising; 9 bighas 9 cottahs of land.

Defendant No. 4 obtained a decree against defendant No. 2 and another person in the Court of the Second Munsif of Bagirhat on the 3rd November 1884 for Rs. 268-12-0, and on 6th August 1887 sold that decree to the plaintiff.

On 8th August 1887 the plaintiff applied in that Court for execution of his decree. The property in question in this, suit was attached on 5th September 1887, was sold in execution on 20th October 1887, and was bought at the sale by the plaintiff.

Defendant No. 3 obtained a decree against defendant No. 2 and another person in the Court of the First Munsif of Bagirhat on 6th May 1875. That decree was purchased by defendant No. 1 in January or February 1887. In execution of this decree the property in question in this suit was attached. The order for attachment was made on 16th July 1887, and the property was actually attached on the 28th July 1887, an objection put in by the judgment-debtor being disallowed. The order for attachment was affirmed on appeal on the 26th November 1887.

In April 1888 the plaintiff, on the strength of his auction purchase of the 20th October 1887, put in a claim in the execution proceedings in the Court of the First Munsif, and the claim was disallowed.

The plaintiff now brings this suit to set aside the order disallowing his claim, and for a declaration that the right, title, and interest of defendant No. 2 passed to him under the sale of the 20th October 1887.

The principal contest in the Courts below was whether or not the plaintiff was really a benamidar of defendant No. 4, from whom he had purchased the decree of the 3rd November 1884. The First Court held that he was, and dismissed the suit. The Lower Appellate Court held that he was not, reversed the decision of the First Court, and made a decree in favour of the plaintiff.

In appeal this question is not discussed before us, but it is contended that, under the provisions of Section 285, the sale of October 1887 in the Court of the Second Munsif was absolutely void, inasmuch as the property had been first attached in the Court of the First Munsif.

The Court of the First Munsif was not a Court of higher grade than that of the Second Munsif within the meaning of the section, but the property was first attached under the decree passed by it. We think we are concluded by authority in this Court from holding that the sale was void. Bykant Nath Shaha v. Rajendro Narain Rai ILR Cal. 333 is a direct authority upon the point, and we must follow it.

The question was discussed and was decided the other way in the case of Badri Prasad v. Satan Lal ILR All. 359 which was followed in Aghore Nath v. Shama Sundari ILR All. 615 and in Muttukaruppan Chetti v. Mutturamalinga Chetti ILR Mad. 47 it seems to have been assumed that if the section applied to Immovable property, as it was held to do, this construction of the section must be adopted and applied.

The case of Bykant Nath Shaha v. Rajendro Narain Rai ILR Cal. 333 is, however, binding upon us; it has been followed in this Court; we agree with it; and we do Dot think it necessary to discuss in this case the reasons on which it is founded.

The appeal is dismissed with costs.