Harihar Prasad Sahu vs Lakhan Lal Sahu

Fazl Ali, J.—The undisputed facts of this case are that sometime in 1926 one Sheoprasad, brother of the petitioner, instituted a partition suit against the petitioner 1 and a final decree in the suit was passed on 17th August 1923. Mean while the opposite party had obtained a money decree against Sheo prasad and in execution of this decree a certain house, which was one of the properties included in the partition suit, was purchased by him and he obtained possession of it in due course on 16th August 1933. Subsequently the petitioner having executed the decree for partition and having obtained delivery of possession, the opposite party preferred an application under O. 21, R. 100 and this Application has been allowed by the Subordinate Judge who has found that the opposite party had obtained possession in duo course in execution of his money decree and was in fact in possession on the date when possession was delivered to the petitioner. Upon this finding it would appear that the learned Subordinate Judge was competent to allow the application of the opposite party under O. 21, R. 100. Mr. Bose who appears on behalf of the petitioner however contends that in deciding the case the learned Subordinate Judge has entirely overlooked the provisions of R. 102, O. 21 which provide:

Nothing in Rr. 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

It is contended that as the opposite party purchased the property during the pendency of the partition suit he is not entitled to claim the benefit of O. 21, R. 103 or R. 101. It is however to be noticed that O. 21, R. 102 does not in terms apply to an involuntary sale, but it is contended on behalf of the petitioner that the language used in R. 102 is not materially different from the language of S. 52 and that in any case the general doctrine of lis pendens will apply to the present case. It appears to me however that in granting the summary relief which has been provided by. Rr. 100 and 101 the Court will have'' to confine itself to the language of the specific provisions by which a remedy is, provided. Even assuming however that that the general doctrine of lis pendens will apply to the present case, the fact which has to be borne in mind is that the Court below has found that the partition decree was not obtained in a contentious suit hut it was a collusive decree. Mr. Bose contends in the first place that the question as to whether the decree in the partition suit was a collusive one or not could not have been gone into by the learned Subordinate Judge. His second contention is that even if it was permissible for the Subordinate Judge to go into that question the Subordinate Judge was in error in deciding to go into it at a late stage of the proceeding after having once conveyed to the parties his intention not to decide that question.

The latter question is hardly one which can be gone into by a Court of revision. It relates to a matter of procedure and the fact which cannot be overlooked is that the Court did go into the question and did come to the finding that the decree was a collusive one. As to the question whether the Court could have gone into the question at all, there is no doubt that Mr. Bose is right in contending that as the Court executing the decree cannot go behind the decree it should not go ordinarily into the question as to whether the decree was collusive or not. In this particular case however the petitioner raised the question of lis pendens before the Court and he wanted the Court to decide the matter not upon the plain language of R. 102 but upon the basis of the general doctrine of lis pendens. In these circumstances the Court had to 2nd out whether the partition suit was in fact a contentious suit or not. Therefore the decision of the Subordinate Judge cannot be interfered with in revision and the application must be dismissed with costs: Hearing fee one gold mohur.