LALMINA SINGH Vs. KAMAL SINGH

JUDGEMENT

(1.) These two applications arc directed, against a judgment of a Division Bench of this Court dated the 16th May 1951, passed in First Appeal No. 202 of 1946 and in Civil Revision, No. 610 of 1946, by which the first appeal was dismissed and the civil revision was allowed, the two cases being heard together.

(2.) The petitioner in these two applications is the same; the opposite party is also the same. The facts giving rise to the dispute may shortly be stated as follows: The petitioner had an occupancy holding measuring 99.46 acres, being 'khata' No. 13 of village Jahua, under the opposite party. There was default in the payment of rent and the opposite party instituted a suit against the petitioner for recovery of arrears of rent in respect of the holding and a decree was obtained. The decree was executed in execution case No. 883 of 1936 in the court of the Second Munsif of Buxar. The petitioner filed an objection under Section 47 of the Code of Civil Procedure on the ground, 'inter alia', that the execution was time-barred. The objection was dismissed by the Munsif and thereupon an appeal was preferred by him to the District Judge. During the pendency of the appeal the holding was put up to sale and auction-purchased by the decree-holder on the 17th May 1937. On the 16th June 193T, the petitioner deposited the amount under Order 21, Rule 89, Code of Civil Procedure, and prayed that the amount deposited by him be not allowed to be withdrawn by the decree-holder, and although the prayer was rejected, the money was not withdrawn by the decree-holder. The appeal filed by the petitioner against the order dismissing his application under Section 47 of the Code of Civil Procedure was, however, allowed and the application for execution was held to be time-barred. Thereupon the decree-holder preferred a second appeal to this Court, and before the appeal was finally decided the Munsif set aside the sale and held that the judgment-debtor "will get back the money deposited," and on the 22nd April 1938, a payment order for the sum deposited was is- sued to the judgment-debtor and he withdrew the money. The decree-holder's appeal was, however, allowed by this Court and the case was remanded to the District Court. The District Court, after remand, held that the execution petition was not barred. Thereafter, on the 16th March 1939, the decree-holder applied for re-deposit of the amount withdrawn by the petitioner, but he did not deposit the money. On the 22nd August 1949, the decree-holder auction-purchaser applied to the Munsif to confirm the execution sale and it was duly confirmed. Thereafter the auction purchaser applied for delivery of possession and after several unsuccessful attempts he got delivery of possession in October, 1942, and the execution case was finally disposed of.

(3.) After the delivery of possession was obtained, the opposite party, auction-purchaser, instituted a suit on the 19th April 1943, against the petitioner in the court of the Subordinate Judge at Arrah, claiming Rs. 7698/- by way of mesne profits for the period between the confirmation of the sale and the delivery of possession that is, for the years 1347 to 1349 'Fasli'. The petitioner resisted the claim on various grounds. This suit was decreed on the 24th January 1946. An appeal was preferred to this Court against the decree, being First Appeal No. 202 of 1946, and this Court by its judgment dated the 16th May 1951, affirmed the decision of the trial court and dismissed the appeal. Supreme Court Appeal No. 116 of 1951 is directed against the decree in this appeal.