AJAIBUL HASSAN Vs. S CHIRANJI LAL

JUDGEMENT

(1.) Pending a suit on a mtge, under which the machinery, the furniture & other paraphernalia of a cinema house had been pledged, the opposite party 1 was appointed a sapurdar by the learned Munsif of Chandausi under an order dated 29-11-1949. The building in which these items of property had been installed was not a part of the security. In fact it could not be, as the defts in the mtge suit held the building only as lessees on behalf of the original owner or owners for the purpose of running a cinema show. All the same, those things had been permanently fixed & installed in the Hall as found by the learned Munsif, when the sapurdar (opposite party 1) was put in possession of the properties mortgaged, he had necessarily to be put in possession of the building also. He was in fact put in possession of the building under the order dated 29-11-1949 appointing him a sapurdar.

(2.) In the course of his functions as sapurdar the opposite party 1 was found to have misbehaved. The learned Munsif remarked: "He abused his position as sapurdar & acted in bad faith from the beginning to the end. I have discussed his conduct in detail in the course of my orders dated 9-1-1950 & 18-1-1950."

(3.) An appln was then made by the defts in the suit to remove opposite party 1 from the possession of the properties mortgaged, indeed from the possession of the building also, in which those properties were permanently installed. By an order dated 18-1-1950, to which I have referred in the above quotation, the learned Munsif removed the said opposite party from his position as sapurdar, directing him to vacate his possession over the articles that had been entrusted to him. No appeal or revision against that order was filed by the sapurdar, & we are informed that that order became final. Subsequently, on 15-3-1950, the learned Munsif, while dealing with a number of applns made by one or the other of the parties to the suit, & by the sapurdar seeking to retain control over the properties, passed an order directing the erstwhile sapurdar to surrender possession over the articles in his charge to the Ct Amin. This was obviously with a view to ensure the safety & security of those articles. Against this last order, the opposite party 1 filed an appeal in the Ct of the Dist J., Moradabad, so far as the order of the Munsif had directed the said opposite party to deliver possession to the Amin over the cinema building also. Pending that appeal an appln was made by him before the learned Judge for stay of the operation of the order of the learned Munsif dated 15-3-1950, so far as it related to that building. There appears to have been taken an objection then by the counsel appearing for the defts before the learned Dist J. that he had no jurisdiction to pass any order on this appln for stay, as he had none to entertain the appeal itself, in which that appln had been made. The learned Judge allowed the appln after hearing both the parties & passed an order of stay. In the course of his order he observed : "Chiranji Lal (Opposite Party 1) was only a supardar for the machinery hypothecated to the pltf & in my opinion the rights of Chiranji Lal & the defts regarding the possession of the Hall cannot be determined in the suit as the decision of the same is not necessary to the (sic) relief to the pltf." That is to say, according to him, there could be no question of Chiranji Lal being asked to vacate possession of the building, as he had never got that possession in his capacity as a sapurdar. This was contrary to what the learned Munsif had found, after a somewhat detailed discussion of the matter, that Chiranji Lal had in fact been put in possession of the building together with its permanent fixtures, that is, the properties mortgaged with the pltf, under the order dated 29-11-1949, appointing him a sapurdar. There was thus on a vital question a conflict of findings between the two Cts, although, so far as the learned Dist J. was concerned, he utilised his finding only as a basis for the order of stay which he actually passed on the appln made by Chiranji Lal for that purpose. It was against this order that the present revision was filed by the defts in this Ct.