Lal Nilmony Nath Sahi Deo and others vs Maharaja Pratap Udai Nath Sahi Deo and others

Das, J.—These analogous appeals come before us from the judgment of the Deputy Collector of Ranchi, dated the 24th November, 1920 and arise out of certain applications made by the appellant in each of these appeals for setting aside a sale u/s 213, Chota Nagpur Tenancy Act. The facts are these:-The Maharaja of Chota Nagpur obtained a decree for recovery of arrears of rent against one Madan Mohan Sahi Deo in respect of a tenure, and, in execution of that decree, caused the tenure to be sold, and it was in fact sold to certain persons who may, for convenience, be called the Birla Brothers. Thereupon Modan Mohan and certain other persons, who are the appellants in appeals other than appeal No. 48 of 1921, presented separate applications under the provisions of Section 213 of the Chota Nagpur Tenancy Act for setting aside the sale held in execution of the rent decree. Pending the disposal of his application, Madan Mohan died in April 1919. On the 12th October, 1920, Gobinda Nath Sahib Deo, the appellant in Appeal No. 48 of 1921, applied for substitution of his name and for continuing the proceedings commenced by Madan Mohan for setting aside the sale. The question raised in appeal No. 48 of 1921 is, whether the application has not abated by reason of the fact that steps were not taken to have substitution effected within the time allowed by law. The learned Deputy Collector has come to the conclusion that the application presented by Madan Mohan has abated and that no further order can be recorded in that application. I am of opinion that the order of the learned Deputy Collector is right and must be affirmed.

By the express direction of Section 265 of the Chota Nagpur Tenancy Act, the provisions of the CPC relating to substitution and addition of parties apply to the cases before the Deputy Commissioner. Order 22, Rule 3 of the Code ''is then a part of the Chota Nagpur Tenancy Act, and an application for substitution in a case before the Deputy Collector must be regarded as an application under the Chota Nagpur Tenancy Act. Section 230 of the Chota Nagpur Tenancy Act provides that the provisions of the Indian Limitation Act shall, so far as they are not inconsistent with the Act, apply to all suits, appeals and applications under the Chota Nagpur Tenancy Act. If we apply the provisions of the Limitation Act to the application made by the applicant for substitution there is no doubt that application was made considerably out of time. But it is urged that, if the provisions of Order 22 apply to a case before the Deputy Collector, the provision of Rule 12 of that Order equally applies and that consequently the question of substitution does not apply to proceedings in execution of a decree or order. It may be conceded that the question of substitution does not arise in proceedings for execution of a decree or order; but the question still remains whether an application for setting aside a sale held in pursuance of an application for execution of a decree is an application for execution of a decree or order.

In the case of Jagadish Missir v. Sureswar Missir (1921) 2 P.L.T. 273. I expressed the opinion that an application for setting aside a sale cannot be regarded as an application in a proceeding in execution of a decree or order. My conclusion was based on the view that when the sale of the property attached in execution has been completed, and the purchase money has been paid into Court, nothing more remains to be done in respect of the execution of the decree as against that property. I adhere to the view which I expressed in the case to which I have referred; and I must hold that the application presented by Madan Mohan Sahi Deo abated before the application for substitution was presented by the appellant. I must accordingly dismiss Appeal No. 48 of 1921 with costs.

The question raised in the appeals other than appeal No. 48 of 1921 is this, whether Section 213 of the Chota Nagpur Tenancy Act gives the appellants or any of them the right to apply for setting aside the sale, Mr. Chaudhury appearing on behalf of the appellants, contends that his clients applied as persons "who owned such property immediately before the sale," and came within the class of persons recognized by Section 213 as having the right to apply. It is pointed out that Nilmony, appellant in Appeal No. 39, claimed as a co-sharer of the judgment-debtor, that Paras Nath, appellant in Appeal No. 47, claimed two villages in his own right and that Ghasi Ram, appellant in Appeal No. 46, claimed under his father who, it is alleged, purchased some of the villages sold ''under the decree. I do not think that the claim as made by Mr. Chaudhury was, or could have been, put forward before the learned Deputy Collector. The judgment of the learned Deputy Collector shows that it was contended before him that as Khoreposhdars or under-tenure holders, they had the right to apply u/s 213 of the Act. Mr. Imam, appearing on behalf of the auction-purchasers, points out that Nilmoni could not possibly have claimed as a co-sharer before the Deputy Collector. It appears that in rent suits brought by Madan Mohan against Nilmoni, it used to be contended by Nilmoni that he was a co-sharer of Madan Mohan and could not be sued for rent. There are certainly two decisions in the record which establish that Nilmoni is not the co-sharer of Madan Mohan. I am clearly of opinion that the question was not and could not have been raised before the Deputy Collector and, as the question is a question of fact, I decline to go into it in appeal. Appeal No. 39 of 1921 must accordingly be dismissed with costs.

In regard to the point made on behalf of Paras Nath, it is pointed out by Mr. Imam that the allegations in the petition on which Mr. Chaudhury relies establish conclusively that his claim is on the basis that he is an under-tenure holder. He says in his petition that two of the villages belong to him and that the judgment-debtor has no interest in them except that of reoeiving rent from him. This is a clear admission that he was in possession of these villages as an under-tenure holder. The Appeal No. 47 of 1921 must be dismissed with costs.

In regard to the claim put forward on behalf of Ghasi Ram, there is nothing in the allegations made by him which suggest the case that his father purchased the villages in question from one who was in possession of the villages in his own right. The grounds of appeal clearly suggest that his interest was a subordinate one. I have no doubt at all that the only question argued on his behalf before the Deputy Collector was this, that as an under-tenure holder, he was competent to apply u/s 213 of the Act. I must dismiss appeal No. 46 of 1921 with costs.

There will be two sets of costs in each of these appeals, one payable to the decree-holder and one to the auction-purchaser. We assess the hearing fee payable to each of these respondents at 2 gold mohurs in each of these appeals.

Adami, J.

I agree.