Raja Reshee Case Law vs Jarilal Mahapatra and Others

Jack, J.—This rule has been issued calling upon the opposite party to show cause why an order allowing an application under Order 21, Rule 100, Civil P.C., should not be set aside. This rule was issued on the ground that in a matter arising out of an application u/s 26-F, Ben. Ten. Act, the Court below had no jurisdiction to entertain a claim under Rule 21, Rule 100, Civil P.C. This rule runs as follows:

Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof he may make an application to the Court complaining of such dispossession.

It is urged that the dispossession under Order 21, Rule 100, must be by the purchaser of the property sold in execution of a decree. In this case the dispossession was by the landlord who was put into possession u/s 26-F, Ben. Ten. Act. Under Clause 6, Section 26-F, the right, title and interest in the holding; shall be deemed to have vested in the immediate landlord, whose application has been allowed, from the date of making the order under Clause 5. The landlord, petitioner, was put into possession under the provisions of this section as against the opposite party and it is clear that he has obtained possession owing to the fact that there was an auction sale and that he has been put in the position of an auction purchaser by virtue of the provision of Section 26-F. It is clear also that under Clause 6, Section 26-F, it is the intention of the legislature to put the landlord in the position of the auction-purchaser as regards his rights and liabilities. In fact the landlord becomes the legal representative of the auction-purchaser as regards the holding in question and although the wording of Order 21, Rule 100 refers only to the auction-purchaser it seemt clear that it must be intended to include his legal representatives. There seems to be no reason why a person who is dispossessed by the legal representatives of the purchaser should not have the same remedy against them as against the purchaser. I think therefore that this rule must be discharged with costs-hearing fee, one gold mohur-and I order accordingly.