KALI CHARAN SHAW Vs. KISSEN LAL CHOUDHURY

JUDGEMENT

(1.) After the purchase of a property, at auction sale in execution of a decree in Money Suit No. 181 of 1953 by one Gangadin against one Mahabir, the Opposite Party Kissen Lal Choudhury instituted a suit for declaration of his title and confirmation of possession which, it was said, was obtained through court alter purchase at the auction sale. A prayer was made for a temporary injunction restraining the defendant Kali Charan Shaw from proceeding with three Small Causes Court suits which the latter had instituted on claims of rent for portions of the premises and from proceeding with the title appeal which was pending in the Appellate Court against a decree obtained by him against a tenant of another portion of the premises. For a proper understanding of the dispute, it is necessary to refer to the previous history of the litigation in connection with this premises. The money suit in execution of the decree in which Kissen Lal made his purchase was brought on 26-11-1953 and the property was attached before judgment. On the attachment being effected, the present petitioner Kali Charan Shaw put in a claim to the property, claiming to have purchased the property from the defendant by a kobala dated 19-3-1952. His prayer was that the property should be released from attachment. It appears that Kali Charan admitted that after he purchased the property he let out the premises to Mahabir on a monthly rent and Mahabir was in possession of the premises at the date of attachment. The learned Munsif being of opinion that on the claimant's own case the defendant had some interest and was in possession of the property as such, there was no reason why the attachment should be lifted. After stating that the attachment related to whatever rights Mahabir had in the property and it could not affect the rights, if any, which the plaintiff had in it, the learned Judge ordered that the Miscellaneous Case be dismissed. No suit, as contemplated under Order 21, Rule 63 of the Civil Procedure Code, was brought against this order. Kali Charan, however, brought an ejectment suit against Mahabir and that suit was decreed on 22-4-1955. It is said that on 9-7-1955, Kali Charan got khas possession in execution of the ejectment decree and has been realising rent from the tenants in occupation of different portions of the premises, that actually he has obtained a decree of ejectment against one tenant and has realised rents by suit or amicably from others and had instituted three other suits "for rent, S. C. C. Suits Nos. 2409, 1410, 2411 of 1957, which were pending. As already stated, Gangadin's money suit having been decreed, Mahabir's property in the promises was put to auction in execution thereof and the present opposite party Kissen Lal purchased the same. It is his case that after the purchase he obtained possession through court.

(2.) The Trial Court was of opinion that the plaintiff's auction purchase took place on 17-4-1957 at a time when the judgment-debtor Mahabir had no existing right or title in the existing suit property. So it was prima facie clear that the plaintiff had not acquired any right, title or interest in the suit property on the basis of his auction purchase. He also held on consideration of the admitted facts that the defendant Kali Charan had filed as many as three S. C. C., suits to collect rents from his tenants and had got one ejectment decree it against one of the tenants of the suit property on contest and the matter was pending in appeal and that

(3.) On appeal, the learned Additional District Judge of 24 Parganas was of opinion that inasmuch as the defendant had not brought a suit as contemplated by Order 21, Rule 63 of the Civil Procedure Code against the order in the claim case he was precluded from pleading that he had right to the suit property by virtue of his purchase in 1952. The learned Judge was of opinion that in view of this the learned Munsiff was bound to reject the defendant's plea of purchase and should have allowed plaintiff's prayer for restraining the defendant from proceeding with these S. C. C. suits and the Title Appeal.