Ramchandra Jha and Others vs Prasad Thakur and Others

Dhavle, J.—This is an application in revision against an order dismissing an application under Order XXI, Rule 100, Civil Procedure Code, on the ground that "the applicant was in possession of the disputed lands subject to the mortgage right of the decree-holder". It has been contended on behalf of the applicants that the lower Court has entirely misapplied Rule 101 of Order XXI 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 he be put in to possession of the property. What the learned Subordinate Judge has done is to find the applicants to have been in possession but subject to the mortgage right of the decree-holder. The applicants were no parties to the decree-holder''s mortgage 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 mortgagor 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 arrived at a positive finding that the applicant was in possession of the disputed lands at all. But this contention is negatived 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 XXI, 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 contention on behalf of the petitioner is clearly right and must be accepted. The order of the lower Court is set aside, and the application under Order XXI, Rule 100, allowed with costs in both Courts, healing fee in this Court one gold mohur.