Inderdeo Narain Singh vs Gouri Shanker

Chapman, J.—On the 4th of February 1905 one Rai Bahadur Harihar Prasad Singh obtained a mortgage-decree against Mathura Prasad Singh. In September 1917 the mortgage property was put up to sale and was purchased by one Gouri Shanker. An application was made to have the sate set aside upon the ground of irregularity. The application was made by one Bindeshwari who had purchased the property from one Lokenath who had himself purchased it at a sale in execution of a mortgage decree obtained by him.

On the 19th November 1917, Gouri Shanker applied for the appointment of a Receiver. No objection being made by the other side, a Receiver was appointed upon that date. On the 25th November 1917 before the Receiver had taken possession of the property and in fact in the course of his journey to take possession, be was met by an objection made on behalf of one Inderdeo Narain Singh who objected to the Receiver taking possession of the property. Inderdeo Narain''s objection was to the effect that his father had taken a lease of this property on the 23rd December 1907 and that he was entitled to retain possession, because although the lease was subsequent to the date of Harihar Prasad''s mortgage, yet he had paid off debts and other charges prior to the decree in the suit under which the sale had been held, and that he had retained possession of the property as holder of prior charges.

It appears that at about this time the Court was closed and upon the re opening of the Court on the 3rd December, the Receiver reported this objection to the learned Subordinate Judge. The learned Subordinate Judge summarily dismissed the objection upon that date. An application was then made by Inderdeo Narayan to have his objection re-heard. The Subordinate Judge re-heard the objection and again overruled it upon the ground that the ijara had no existence in the eye of the law, having been made during the pendency of the mortgage suit.

Inderdeo Narayan now appeals to this Court. He has filed two appeals, one against the first order summarily overruling his objection on the 3rd December and the other appeal being against the subsequent order overruling it on the 6th December. There is also an application in revision.

A preliminary objection has been made that no appeal lies. This objection must be given effect to. Inderdeo Narayan was not a party to the suit, and, therefore, he has no right of appeal to this Court. The appeals are, therefore, dismissed.

Inderdeo Narayan has, however, also made an application in revision, and it is that application which we now proceed to consider.

The above recital of the facts makes it clear that Inderdeo Narayan was in no sense a party to the proceedings in which the Receiver has been appointed. The appointment of the Receiver was by implication an order to the parties in the case to deliver possession to the Receiver and to permit the Receiver to comply with the orders of the Court; but it was not by implication or otherwise, any order to a person who is not a party to the suit, and it was not an order to Inderdeo Narayan either to deliver possession to the Receiver or prohibiting him from interfering with what the Receiver was required to do by the Court. The only ground upon which the Court could have overruled the objection made by Inderdeo Narayan, appears to be that Inderdeo was in fact acting on behalf of one of the parties to the suit and did not put in a bona fide claim of right. The learned Subordinate Judge baa not proceeded upon any ground of that kind: he has in fact determined the question of right in the case, namely, whether Inderdeo Narayan could make any claim in fact under his ijara or not. The Subordinate Judge has omitted to deal with the real point in the case which is the claim by Inderdeo that he was entitled to a prior charge by reason of the fact that he had discharged the prior mortgage and also by reason of the fact that he had discharged a rent decree. I am of opinion that we should interfere upon both grounds; the first ground being that the Subordinate Judge had no jurisdiction to overrule the objection unless he was satisfied that the claim was not made bona fide or was made really on behalf of one of the parties to the case: the other ground being that the learned Subordinate Judge has not dealt at all with the claim that Inderdeo was entitled to a prior charge. I am, therefore, of opinion that his order overruling the objection and directing the Receiver to take prompt action, must be set aside, and that Inderdeo Narayan in his application for revision is entitled to succeed. In the course of the argument in this Court, Inderdeo''s Counsel drew our attention to the fact that his client had been put in possession under section171 of the Bengal Tenancy Act. Under that section, he is entitled to remain in possession until his debt is discharged on behalf of the opposite party. It has been contended that if this claim had been made before the Subordinate Judge the opposite party would have been able to show that by reason of his long possession under that section, the debts had been discharged and that he had no present right to remain in possession. If such a claim was made whether the Subordinate Judge would have had jurisdiction to entertain it, is not necessary now to determine, but we are of opinion that the omission of Inderdeo Narayan to put forward a claim of that kind to the Subordinate Judge, is a point which the Court would consider in assessing costs. It is probable that if his claim u/s 171 had been placed before the Subordinate Judge that the order would have been different.

We accordingly direct the parties to abide their own costs. The order of the Subordinate Judge is set aside.

We are informed that the application to set aside the sale, will be entertained on Saturday. We accordingly direct the Registrar to take steps to send the record down without delay.

Atkinson, J.

I agree.