HIRALAL GHOSH Vs. JATINDRA NATH CHAKRAVORTY

JUDGEMENT

(1.) THE decision of these two rules turns on the point whether or not the grantees from a decree-holder after the decree which has been reversed in appeal are parties within the meaning of section 144 of the Procedure Code and ought to be allowed to resist, by an injunction, the restitution ordered in favour of the original defendant and judgment-debtor whom the grantees have through the decree-holder ousted the defendant Jatindra Nath Chakravorty, the opposite party before me, held the property in controversy as a tenant under one Soleman Khan who got a decree against him and evicted him in execution. More, soon thereafter he separately inducted the two petitioners, Hiralal Ghosh and Nepal Chandra Paramanik, as tenants. But the decree having been carried in appeal has since been upset and restitution ordered. To frustrate this restitution, the petitioners bring a suit each for a declaration of his tenancy right under the said Soleman Khan. And the interlocutory relief each prays the court for a temporary injunction restraining the opposite party from taking possession by virtue of the restitution ordered. The trial judge does not grant it. Nor does the appellate judge. Hence the petitioners have up to this Court in revision and obtained the rules.

(2.) MR. Mukherjee, the learned advocate for the petitioners, contends that his clients are bona fide strangers to whom the reversal of the decree and the consequential order of restitution can do no harm. Mr. Dey, the learned advocate for the opposite party, contends on the other hand that, far from strangers, they are grantees from the decree-holder pendents lite and are, therefore, themselves parties within the meaning of section 144. Any other view, Mr. Dey concludes, would make litigation interminable, there being no dearth of evil-minded people to come in when an appeal pends with a view to keeping away from the party successful in appeal the fruits of his lis, nawab Zain-ul-Abdin Khan v. Muhammad Asghar All Khan and others (1) 15 LA. 12, Mr Mukherjee relies upon in support of his contention is not in point. Sir Barnes peacock delivering the opinion of the Board emphasizes that there is a great distinction between the decree-holders who come in and purchase under their own decree, afterwards reversed in appeal, and the bond fide purchasers who come in and buy at the sale in execution of the decree to which they are no parties, and at a time when that decree is a valid decree, and when the order for the sale is a valid order. A non-decree-holder auction-purchaser has nothing to do further than to look to the decree and to the order for sale. Some twenty-seven years later in Satish Chandra Ghosh v. Ramessari Dassi and others, (2) 20 C. W. N. 665, Jenkins, C. J. sitting with N. R. Chatterjea, J. explains this Privy Council decision and observes:

(3.) THIS is a complete answer to Mr. Mukherjee's contention. The petitioners have taken settlement from one (Soleman Khan) whose right to settle is defensible and is in fact defeated by the upsetting of the decree. The weakness of such an approach apart, I see considerable force in Mr. Dey's contention. The petitioners, grantees both, pendents lite of the decree-holder Soleman Khan are parties within the meaning of section 144. And it is but right that the opposite party, the decree-holder Soleman Khan and the two petitioners who claim through him, should be placed in the position which they would have occupied but for the decree since upset. That section 144 applies to parties or their representatives is now so well held that it is hardly necessary to refer to authorities some of which Mr. Dey has been good enough to cite. But notice must be taken of a Bench decision of this Court in Sagore Mondat v, Mofijuddin Sardar, (3) 24 C. W. W. 50, where Chatterjee and Neubold, JJ. grant restitution even though the decree-holder auction-purchaser subsequent to his purchase settles the land with a tenant. How far in principle is that case from the one in hand ? Not very.