Ramkishun Lal vs Jugalkishore Lal, Claimant and Another

Agarwala, J.—The landlord of holding No. 137 sued the recorded tenant, Rupchand, for rent in September 1935, and obtained a decree on 10th February 1936. He then applied for execution of the decree. The opposite party, Jugalkishore Lal, who claims to have purchased the land in dispute in execution of a money decree on 19th June 1935, raised an objection to the execution on the ground that the rent had been reduced by the Rent Reduetion Officer. This objection was upheld. Jugalkishore then made another objection with regard to the amount that was due on the basis of the reduced rent, and this objection was also upheld. Eventually, the holding was sold in execution of the rent decree on 24th May 1940, and was purchased by the petitioner to whom delivery of possession was given on 14th August 1940. Jugalkishore then complained to the executing Court that he had been dispossessed and prayed, under Order 21, Rule 100, Civil P.C., that he should be restored to possession on the strength of his purchase in execution of the money decree on 19th June 1935. The application has been allowed and it is against the order allowing the application of Jugalkishore that the auction purchaser in execution of the rent decree has moved this Court.

It is contended on behalf of the petitioner that the only remedy open to Jugalkishore in the events which have happened was that provided by Section 174, Bihar Tenancy Act. That section provides that where a holding has been sold for an arrear of rent in respect of it, then, within thirty days from the date of the sale, the judgment-debtor, or any person whose interests are affected by the sale, may apply to have the sale set aside on his depositing in Court, for payment to the decree-holder the amount recoverable under the decree with costs, and, for payment to the purchaser, a sum equal to 5, per cent, of the purchase money.

On behalf of Jugalkishore, it is contended that he is not a person whose interests are affected by the sale, because his purchase had been recognized by the landlord prior to the sale in execution of the rent decree and that, therefore, the holding could not be sold in execution of a decree in a suit to which he was not a party. There is no doubt about the fact that Jugalkishore was recognized as the tenant of this holding by the landlord before the sale in execution of the rent decree. The effect of that recognition was that a fresh tenancy was created between the landlord and Jugalkishore and unless that tenancy was subject to conditions which prevented the relationship of landlord and tenant from coming into operation immediately, the holding could not be sold in execution of a decree to which Jugalkishore was not a party. It is not alleged in the present litigation that there were any such conditions. The case appears to be governed by the decision in Girish Chandra Mondal and Others Vs. Narendra Nath Haldar and Others,

With regard to one of the plots constituting this holding, namely, plot No. 847, it was contended that this plot was in the possession of an ijaradar, Ganeshri Koeri the wife of the present petitioner. Unfortunately, the facts relating to this are not very clear. It appears that in the proceedings in execution of the money decree Ganeshri Koeri applied for the release of plot. No. 847 from attachment on the ground that she was a mortgagee in possession. The documents relating to that objection are contradictory. From the order on her objection, it appears that the objection was allowed, but the sale certificate that was issued in the execution proceedings shows that this was one of the plots that passed by the sale. Whatever the real facts may be in relation to this plot, it does not involve any question of jurisdiction and, therefore, cannot be raised in the present application u/s 115 of the Code. The rule is discharged with costs: hearing fee one gold mohur.