Masudan Lal vs Ram Gulam Sahu and Others

Facts.--This was an appeal by Masudan Lal and his brother Saligram against the order of the Subordinate Judge, dated the 25th May 1922, disallowing his application to set aside an auction sale held in execution of a mortgage decree.

The mortgage decree was passed on the 14th November 1914, and the sale of the mortgaged properties took place on the 21st March 1919, which was confirmed on the 9th December 1920. One of the properties sold was Gossaingaon alias Bishunpur Gopi. Two annas eight pies, the share of Mr. Das, son of R.S. Das, one of the judgment-debtors, was purchased by Masudan Lal, on the 17th February 1915,in execution of his money decree. Masudan Lal obtained possession of the aforesaid two annas 8 pies of Gossaingaon on the 6th June 1915 and got his name mutated course in Register D of the Collectorate. On the 13th May 1919 the entire 16 annas of Gossaingaon was sold in execution of a road-cess certificate under the Public Demands Recovery Act and purchased by one Mahendra Narayan Das. In that certificate Masudan Lal and Saligram, Appellants before us and Shyam Sahay and others were judgment-debtors. On the 6th August 1921, Mahendra applied under Order 21, Rule 90 of the CPC to set aside the sale of 16 annas of mauza Gossaingaon. His application was numbered Miscellaneous Case No. 125 of 1921. While this was pending on 11th August 1921, Masudan Lal and Saligram made a similar application to pet aside the sale of 2 annas 8 pies of the said mauza and this was numbered, Miscellaneous Case No. 129 of 1921. The applicants in both these cases applied for stay of delivery of possession which the mortgagee sought to obtain under his purchase of mortgage decree of 14th November 1914.

On the 13th August 1821, the Subordinate Judge held that the decree-holder was not entitled to obtain dakhaldehani with respect to 2 annas 8 pies share purchased by Masudan Lal and Saligram. Inspite of this order, the Subordinate Judge apparently stayed delivery of possession with respect to the entire 16 annas.

Then the decree-holders applied in revision to the High Court, and a Division Bench of this Court remanded the case to the Court below for giving delivery of the possession over lb annas 4 pies of the property in question.

The record of the case was received back in the Court below on the 13th March 1922, and the Subordinate Judge then proceeded with the hearing of the application for setting aside the sale. Evidence was then taken which consisted of documents marked Ex. 1 (sale certificate of Mahendra), Ex. 2 (sale certificate of Masudan Lal) and Ex. 3 (Register D). The hearing concluded on the 20th May 1922, and after the arguments of the parties judgment in the case of Masudan Lal and Saligram (Miscellaneous Case No. 129 of 1921) was delivered on the 23rd May 1922, with the result that the Court held that Masudan Lal, had no such interest as can be said to be affected by the sale and he has therefore no right to apply for setting aside the sale.

[His Lordship after stating facts proceeded as follows:]

Now it is contended in this Court that the view taken by the learned Subordinate Judge is erroneous and that Masudan Lal and Saligram had interest in the property which was affected by the sale and therefore they had right to apply under Order 21, Rule 90 of the Code. The learned Subordinate Judge held that whatever interest Masudan Lal and Saligram had acquired by their purchase on the 17th February 1915 in execution of their money decree was extinguished by the subsequent purchase of the entire mouza on the 13th May 1919 by Mahendra Narayan Das in execution of the cess certificate under the Public Demands Recovery Act.

Mr. Jayaswal contended that the purchase of Mahendra was wholly void, and consequently it did not affect the interest acquired by Masudan Lal and Saligram. It is said that Mahendra is son-in-law of Shyam Sahai, one of the judgment-debtors in the certificate sale and that the purchase was benami by the judgment-debtors themselves. In support of this Mr. Jayaswal relies upon the finding of the Court in the objection of Mahendra Das of Miscellanenous Case No. 125 of 1921, wherein the Subordinate Judge held that "the judgment-debtor was the real objector in the name of his son-in-law with a bogus purchase."

Mr. Jayaswal says that a judgment-debtor has no right to purchase any property in a sale under the Public Demands Recovery Act, and refers to Rule 43, Schedule 2 of Behar and Orissa Public Demands Recovery Act (Act XIV of 1914). That Rule runs:

When a tenure or holding, situated in an area in which Chap. XIV of the Bengal Tenancy Act, 1885 or Chap. XVI of the Orisa Tenancy Act, 1913 is in force is put up for sale in execution of a certificate for arrears of rent due in respect thereof the certificate debtor shall not bid for or purchase the tenure or holding.

The prohibition centained therein applied only to a sale of a tenure in execution of a certificate for arrears of rent due from the tenure. It does not apply to sales held in execution of certificates for any other dues such as cess. The execution with respect to a certificate for cess will, therefore, be g07erned by the general provision of the CPC which enjoins no prohibition upon a Judgment-debtor making any purchase, though in Rule 72, Order 21 it enjoins upon the holder of the decree not to purchase without the express permission of the Court. This aspect of the case was apparently over looked by Mr. Jayaswal and the plain reading of Rule 43 was also missed. It may7 also be pointed out that the purchase by a judgment-debtor of a tenure or holding with respect to which the prohibition contained in Section 43 applies does not itself render the sale void but that it can be avoided upon an application made by the decree-holder or any other person interested in the sale. This is obvious from Clause (2) of Rule 43. In no case, therefore, the sale in question in which Mahendra appeared as purchaser, dated the 13th May 1919, was a void sale assuming that Mahendra was only a benamidar of Shyam Sahai one of the judgment debtors and the latter was the real purchaser.

The sale of the property in execution of the certificate for cess, dated the 13th May 1919, therefore stands and the effect of that sale was to extinguish the interest of Masudan Lal and Saligram.

It is then contended that no possession was delivered to the purchaser of the certificate sale, namely Shyam Sahai or Mahendra, and consequently Masudan Lal continued to be in possession of the property which he had obtained on the 6th June 1915 and being in such possession he had interest in the property which was affect by the auction sale in which the Respondents purchased the property But the title of the purchaser in the certificate sale did not depend upon the delivery of possession in order to perfect his title. It vested in him from the date the sale took place. The further proceedings of obtaining sale certificate or dekhaldehni are merely in furtherance of the sale which took place on the 13th May 1919. The possession of Masudan Lal and Saligram after their right, title and interest passed to the purchaser in the certificate sale was merely on behalf of the purchaser in the latter sale. The possession of Masudan Lal and Saligram could not therefore be held to be on their behalf which they were entitled to protect. They have therefore no interest by-virtue of their purchase In this view the case relied upon by Mr. Jayaswal in Smith''s Leading Cases, Vol. II, P. 741, Asher v. Whiteblock (1866) 1 Q.B. 1 does not apply. No satisfactory evidence has been given as to the possession of Masudan Lal and Saligram after the 13th of May 1919. Some chalans for payment of the revenue, though not exhibited in the Court below, were shown to us. They showed payments, prior to the certificate sale, of revenue and cesses by Masudan Lal and Saligram. It was also not stated before us that any Government revenue or cese was paid after the certificate sale. Therefore as a matter of fact they failed to prove their possession over the property. It would appear from a reference to Register hat the names of Masudan Lal and Saligram do not now stand registered, but have been expunged, and in their place the name of the mortgagee purchaser has been recorded. The entry in Register D is of no avail to the Appellants to show their interest in the property based upon title or possession. The entry is liable to be corrected and as a matter of fact has been corrected.

The next argument of Mr. Jayaswal was that inasmuch as the real purchaser at the certificate sale was one of the judgment debtors, Shyam Sahai, his purchase was that of a co-sharer and must be held to enure for the benefit of other co-sharers, Masudan Lal and Saligram and others. In support of this Mr. Jayaswal has re lied upon the following cases:--Jotindra Mohun Tagore v. Debindra Monee [1878] 2 C.L.R. 419 and Janki Singh v. Debinandan Prasad 15 C.W.N. 776 which went up to the Privy Council and the judgment whereof is reported in the Deonandan Prasad v. Janki Singh [1916] 44 Cal. 573 and Faizar Rahman v. Maimuna Khatun [1913] Cri.L.J. 111. These cases have no application to the present one. In those cases the sale was brought about by the default, laches or even fraud of one of the co-charers who purchased the property. Therefore it was held that the co-sharer stood in fiduciary relationship with other co-shaiers in the property and he could not take advantage of his own laches or fraud so as to deprive the other co-sharers of their interest in the property. No such thing has been shown in the present case. We cannot presume that the sale under the certificate of arrears of cess was brought about by Shyam Sahai, one of the judgment-debtors, on account of his own default, laches or fraud. The appellants had ample opportunity to prove that Shsam Sahai was guilty in having caused the sale of the property after the record was received by the Subordinate Judge from the High Court. Lt appears from the order-sheet, extracts from which I have quoted above, that ample opportunity was given to the Appellants and in fact they had their witness also summoned; but no evidence was given at the hearing except the aforesaid documents. Exbts. 1, 2 and 3, referred to above. We have, therefore, to base our inference upon those documents alone. Mahendra''s certificate simply shows that the sale had taken place on account of arrears of cess due from the judgment-debtots among whom Masudan Lal''s and Saligram''s names also appeared. The only possible inference is that they along with other co-sharers had equally defaulted. Therefore, the certificate sale extinguished their interest in the property which vested in the purchaser at that sale whether he was Mahendra or one of the judgment-debtors, Shyam Sahai. Upon the evidence therefore in the case the Court below is right in holding that the purchase by Masudan Lal and Saligram, in 1915, of 2 annas 8 pies of Gossaingaon alias Bishunpur Gopi was of no avail to them and they ceased to have any interest after the 13th May 1919 when the entire village was sold in certificate sale.

The result is that the appeal is dismisssed with costs.

Kulwant Sahay, J.

I agree.