Shohari Kurmi vs Phani Nath Chowdhry and Others

Fazl Ali, J.—The circumstances giving rise to these applications are these One Chuni Lal Misser had two holdings in villages Darkuswa and Bandua under opposite party Nos. 2 to 4. The opposite party Nos. 2 to & who formerly owned the entire 16 annas proprietary share in these two villages obtained a rent decree against Chuni Lai Misser on 22nd February 1921.

After the decree in the year 1922 one Janakpati Choudhrain purchased one-fifth of the proprietor y interest in the villages. In the year 1924 the holdings in question were sold in execution of the rent decree which had been obtained in February 1921 and they were purchased by the petitioner. The petitioner then proceeded to obtain delivery of possession in respect of these holdings from the civil Court. The opposite party No. 1 thereon filed two applications under Order 21, Rule 100, Civil P.C., in which he alleged to have already purchased these holdings in execution of a mortgage decree. He also alleged that he was in possession of the holdings in question by virtue of the purchase and that he was dispossessed as a result of the delivery of possession on 8th October 1927.

The learned Munsif before whom the applications under Order 21, Rule 100 were filed, allowed them with costs and; ordered the possession of the holdings in question to be restored to the opposite party No. 1. It is against this order that the petitioner has now come up to this Court in revision and has obtained a rule.

Mow the first point which has been urged on behalf of the petitioner is that the opposite party No. 1 had no cocud stand to maintain applications under Order 21, Rule 100 which runs as follows:

Where any parson other than the judgment-debtor is dispossessed of immovable proparty 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 before me that the opposite party No. 1 being a purchaser of a non transferable occupancy holding must be considered to be a representative of the original tenant who was a party to the decree and to the sale and as such he may have been entitled to object to the sale u/s 47 of the Code, but he could not maintain proceedings under Order 21, Rule 100, Civil P.C. Learned Counsel for the petitioner supports his argument by citing before me the decision in the case of Panchratnam Koeri v. Ram Sahay Singh [1918] 3 Pat. L.J. 579, In that case there vas an application under Order 21, Rule 100, if the code by a purchaser of a non-transferable occupancy holding, and it was clearly held that such a purchaser being a representative of the judgment-debtor could not maintain proceedings under Order 21, Rule 100.

It is true that a Division Bench of the Calcutta High Court has taken the view that such a purchaser would not necessarily be a representative of the judgment-debtor and must be deemed to be holding the land as a trespasser and therefore on his own account ; but as the case cited by the learned Counsel was a case decided by a Division Bench of this Court, I am bound to follow it and I think that in view of that decision it must be held that the petitioner could not maintain applications under Order 21, Rule 100. It has also been urged before me that the failure to comply with the provisions of Section 153-B, Bengal Tenancy Act, does not necessarily affect a sale held in execution of a rent decree so as to place the purchaser in the position of an ordinary purchaser under a money decree.

Learned Counsel cites in this connexion the case of Badlu Pathak and Others Vs. Sibram Singh and Others, in which it has been laid down that the failure to serve notice u/s 158-B, Bengal Tenancy Act, does not necessarily relegate the purchaser at a sale held in execution of a rent decree to the position of an ordinary purchaser under a money decree and also that the obligation to serve notice upon the cosharer landlord is enacted to protect his interest and it is open to him at his option to waive the necessity for such notice. It is said that the objection in this case as to the failure to serve notice u/s 158-B, Bengal Tenancy Act, proceeds not from any of the landlords but from a stranger and it cannot be held that the purchase made by the petitioner in this case had?'' only the effect of a purchase under a money decree. The case cited by the learned Counsel is distinguishable on the ground that in that case the landlord himself was a party to the case and the question arose between the landlord who had purchased a holding in execution of his decree for rent on the one side and the mortgagee of a non transferable occupancy holding on the other. At any rate if the decision of present case turned on this point alone I would have remanded the ease to-the Court below for arriving at a considered finding in view of the authority of Badlu Pathak v. Sibram Singh AIR 1928. Pat. 234 But as I have already observed, the applications must be allowed on the ground that the opposite party could nob suo-cesfully maintain proceedings under Order 21, Rule 100, Civil P.C.

The result is that the applications are allowed and the orders passed by the learned Munsif in the two case are sec aside. It is also directed that if possession has been already delivered to the opposite party No. 1, it must be re-delivered to the petitioner, Having regard to the circumstances of the case there will be no order as to costs.