NITYANANDA KANANGO Vs. SM PALA DEI

JUDGEMENT

(1.) This revision comes before us as a Pull Bench on a reference under Rule 4, Chapter V of the Rules of this High Court. Under the said rule, taken with Rule 2, the point or points on which the Bench making the reference differed from a decision of a former Division Bench should be stated The order of reference is not specific as to what is the exact point which is referred to us. But there can be no doubt, on a perusal of the said order that wnat was intended to be referred to us, is the question "whether the ruling of the Patna High Court in 2 Cut L T 49, has been correctly decided." It is on that footing that we deal with this reference.

(2.) The subject-matter of this revision is an eight-anna-share in Touzi No. 2861, which has been constituted into the separate Touzi No. 8856. The father of the petitioner before us took a mortgage of this Touzi from the then owner thereof Bayed Abdui Quyyam and another on 31-12-1930. (It may be noted that the Court below states that the mortgaged property is an eight-anna-share in Touzi No. 6866; but it is specifically admitted before us by the lawyers on both sides, on a reference to the documents exhibited, that what was mortgaged, is an eight-anna-share in the parent Touzi No. 2861 which constitutes the full sixteen annas share of the separated Touzi No. 8856.) A suit on the said mortgage was instituted on 30-6-1943 which resulted in a final decree, in favour of the petitioner. The decree was put in execution and the mortgaged property was purchased by the decree-holder himself on 28-6-1948. The sale was confirmed on 30-7-1948. The decree-holder-purchaser thereupon applied on 17-11-1948 for delivery of possession and a warrant for delivery was issued under Order 21, Rule 95, fixing 22-12-1948 for its return. Before the warrant was taken out by the process-server to effect the delivery, the opposite party before us, one Srimati Pala Devi, came up with an application purporting to be one under Section 151 of the Civil P. C., for recalling the writ of delivery from the Nazarat. Her case is that the mortgagors had lost interest in the property mortgaged before the suit on the mortgage was instituted and that she is now in possession of the property sought to be delivered and that she not being a party to the decree is not bound by it. Her contention, therefore, is that her possession cannot be disturbed under the decree and that the writ of delivery should be consequently recalled. As appears to be supported by the documents which she has filed, one Sadhu Charan Mohapatra purchased the entire Touzi No. 8856 on 21-4-1943, in certificate proceedings taken by Government against the original mortgagors. That sale was confirmed on 5-7-1943. The said Sadhu Charan Mohapatra in his turn, sold the Touzi to the opposite party Srimati Pala Devi on 3-1-1945. It is her case that her vendor, since the date of his purchase, and she herself after her purchase from him, have been continuously in possession of Touzi No. 8856 by realising rents from the tenants and in other ways. Evidence of such possession has also been given in the Court below. Admittedly Sadhu Charan Mohapatra, whose purchase, if the case of the opposite party is accepted, was prior to the date of the plaint in the mortgagesuit, was not made a party to that suit, nor has he or the opposite party Pala Devi been impleaded as a party at any stage of the suit or of the execution proceedings.

(3.) On the application made by the opposite party in the lower Court for a recall of the warrant of delivery, notice was given to the decree-holder-purchaser and both parties were directed to adduce evidence. The decree-holder-purchaser did not file any written objection. But from the course of the proceedings in the Courts below, he appears merely to have demurred to the jurisdiction of the Court in entertaining the objection and making an inquiry at that stage. The records of the Court below show that he did not cross- examine the sole witness examined on behalf of the objector-opposite party and did not adduce any evidence oral or documentary on his own side. The Court below relying on the case in 'Krishna. Chandra v. Rajendra Narayan', 2 Cut L T 49., overruled the objection as to jurisdiction and held. on the merits mat the objector had obtained a title which was unaffected by the mortgage-decree ana was in independent possession. It accordingly recalled the writ of delivery issued by it previously.