Ramchandra Jha and Others vs Prasad Thakur and Others

Dhavle, J.—This is an application in revision gainsaid order an order dismissing an application under Order 21 Rule 100 Civil P.C. on the ground that the applicant was in possession of the disputed lands subject to the mortgagee right of the decree-holder. It has been contended on behalf of the applicants that the low court has entirely misapplied Rule 101 of Order 21 and dismissed their application since the Rule referred to requires the court on being satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor to direct that property. What the learned Subordingate judge has done is to find the applicants to have been in possession but subject to the mortagage right of the decree-holder.

The applicants were no parties to the decree-holder�s mortagage suit. An attempt has been made on behalf of the opposite party to support the order of the lower court by arguing that the applicants were representatives of the mortgagor and that therefore their claim had been rightly dismissed. But I do not see how they can be rightly regarded as the representatives of the mortgagor at all.

There was a partition of the tauzi and in that partition the mortagagor got one takhta and the applicants or their predecessor-in-interest another takhta. In a partition suit no party represents any of the other parties.

The learned advocate has also endeavoured to argue that the lower court has not arriver at a positive finding that the applicant was in possession of the disputed lands at all. But this contention is negative by the extract that I have given from the order of the lower Court.

If the applicants were as the lower court has found in possession of the property it is clearly immaterial in an application under Order 21 Rule 100 whether or not their possession was subject to some mortgage right of the decree-holder who did not make them parties to the mortgage suit. The contortion on behalf of the petitioners is clearly right and must be accepted.

The order of lower court is set aside and the application under Order 21 Rule 100 allowed with costs in both courts hearing fee in this Court on gold mohur.