BIPENDRA PRADHAN Vs. RABINDRA NARAYAN DAS

JUDGEMENT

(1.) THE plaintiff has preferred this appeal against the con-firming decision of the district Judge, Cuttack, passed in Title Appeal No. 29 of 1960.

(2.) THIS Court remanded Second Appeal No. 419 of 1963 to the lower appellate court to decide the matter afresh on giving findings on (1) the question of the plaintiff's right to claim subrogation and reimbursement and (2) whether such a right if available would be barred by limitation when the amendments made in pursuance of the directions of the High Court adding new relief would be deemed to relate back to the date of institution of the suit. The court below on fresh hearing finds that the right to claim subrogation and reimbursement is not available to the plaintiff, appellant herein. It has not decided the question of limitation on the ground that it does not arise for consideration in view the conclusion on the first above-mentioned question.

(3.) THE plaintiff's case in short is that Touzi No. 3695 belonged to Gokula-nanda. Baikunthanath and Kunjabehari, each having one-third share therein. Kuniabehari separated from the other two branches and the other two Gokula-nanda and baikunthanath, having two-thirds share, continued joint, Baikunthanath mortgaged his one-third interest to one Murali Panda in 1933. Murali's son Mohini mohan obtained a mortgage decree against Baikunthanath and put his share to sale in Execution Case No. 354 of 1941. Defendant No. 1 Rabindranaravan, son of the above named Kunja-behari, purchased the share of Bail kunthanath in court sale on 15-9-1941 for Rs. 1,000/ -. Before confirmation of the sale. Baikunthanath executed a sale deed in favour of the plaintiff for a consideration of Rs. 1,500/- on 25-10-1941 in respect of his 5 annas 4 pie share in the said Touzi which was on sale in the execution case. That sale deed was registered on 27-10-1941. From out of the consideration money Paid by the plaintiff. Baikunthanath through his son deposited Rs. 1,000/- in court, and the above-mentioned sale in the execution case was set aside on 6-1-1942. In the meanwhile on 17th November. 1941 10 annas 8 pies share in the Touzi belonging to Baikunthanath and Gokula-nanda was also put to sale in a certificate proceeding for arrears of cess and the first defendant purchased that portion of the Touzi in that sale. It is worthwhile mentioning that the said certificate proceeding was filed on the 15th August, 1940 and notice thereof under Section 7 of the Public Demands Recovery Act was served on the 10th March, 1941 on the certificate debtor No. 2 who was living at that time. No notice could be served on certificate debtor No. 1 reported to be dead by that time. In Second Appeal No. 169 of 1949 the Division Bench of this court, on a consideration of the facts of this case, found that the above-mentioned baikunthanath was the certificate debtor No. 2 and certificate debtor No. 1. who was reported to be dead, was Gokulananda these two being the co-sharers of the said two third share in the Touzi-Notice under Section 25 (2) of the Public demands Recovery Act was issued on the 21st May. 1941 and on the 15th Oct. , 1941 the agent of Gokulananda and the brother of defendant No. 1 filed an application for payment of the certificate dues bv instalments. as no instalment as ordered by the certificate court was paid, the aforesaid certificate sale was held on the 17t'h November, 1941 and defendant No. 1 purchased the same and this sale was confirmed on the 20th January, 1942. The plaintiff alleges that the purchase made by defendant No. 1 in the above-mentioned certificate sale was Be-nami for the co-sharers Baikunthanath and gokulananda and the said sale and purchase were brought about and effected by fraud and collusion, without letting the same known to the plaintiff, in order to cause wrongful loss to the plaintiff, and so he is entitled to reconveyance of his share in the Touzi on payment of proportionate share of the certificate sale amount.