JAGAT NARAIN SINGH Vs. KHARTAR SAH

JUDGEMENT

(1.) THE appellant is the legal representative of one Madhusudan Singh, deceased. THE appeal, which is brought in forma pauperis, arises out of proceedings to enforce a money decree dated March 23, 1926, obtained against Madhusudan's brother Shyam Lal by one Soshi Bhusan in the Court of the Subordinate Judge at Jamtara in the Sontal Parganas. THE execution case which has given rise to this appeal was brought in the same Court on September 15, 1930, by respondents Nos. 1 and 2 who had in 1929 purchased the rights of Soshi Bhusan in the decree. It is numbered Money Execution Case No.14 of 1930. It was the second case brought to enforce the judgment of 1926, the first (Money Execution Case No.12 of 1928) having been brought in the same Court by the original decree-holder Soshi Bhusan on May 22, 1928. THE main question raised before the Board is as to the effect to be given in the second case to certain orders passed against Madhusudan in the first.

(2.) SHYAM Lal was the owner of an impartible estate known as the Jamtara estate and, being involved in debt, he assigned his immovables to Madhusudan by deed dated January 10, 1923, reserving only a maintenance allowance to himself.

(3.) THE balance of the debt was not paid as agreed and respondents Nos. 1 and 2 having bought the decree, applied for the execution on September 15, 1930. Madhusudan and the receiver were again cited as judgment-debtors in addition to Shyam Lal. Properties of the Jamtara estate were again attached and were sold on June 6, 1931. Madhusudan took no steps in the meanwhile, but on July 6, 1931, he applied to have the sale set aside under Rule 90 of Order XXI of the Code which provides that at the instance of any person whose interests are affected by the sale such an order may be made "on the ground of a material irregularity or fraud in publishing or conducting" the sale. He set out in his application eleven grounds of which the first nine alleged various irregularities as to notice and otherwise in connection with the sale. As his tenth and eleventh grounds he said that the sale was without jurisdiction and was in any view of the case liable to be set aside. After hearing a number of witnesses, the learned Subordinate Judge by his order of November 12, 1932, held that Madhusudan's case failed on the facts as regards all the irregularities alleged and this finding is not now disputed. He further held, however, that the sale should be set aside on the question of jurisdiction. He rejected the view that Madhusudan was the "representative" of Shyam Lal, and he did not consider that the compromise which had ended the previous execution case could be enforced in execution against Madhusudan without any decree against him having been obtained.