RAMNATH PRASAD SAH Vs. KESHWAR SAH

JUDGEMENT

(1.) On the facts and in the circumstances, referred to in the order under revision, this is a typical case where the dictum of the Privy Council that the difficulties of a decree-holder or, for the matter of that, the auction purchaser, are too numerous after passing of the decree, is demonstrated.

(2.) Opposite party No. 9 had obtained a money decree against opposite party No. 3 in the year 1955. In execution of that decree certain property was sold and purchased by the petitioner. There were objections in several miscellaneous cases. He eventually, according to his case, succeeded in obtaining delivery of possession, but, somehow, subsequently lost it. In the year 1959 he filed Title suit No. 130 of 1959, for possession over the property which he had purchased in execution of the money decree aforesaid. The suit was decreed. There was an appeal by the defendants of that suit but the appeal was dismissed. The decree was put into execution for obtaining delivery of possession. Opposite parties nos. 1 and 2 then filed a case under order 21, rule 58 of the Civil Procedure Code, hereinafter to be called the Code, on 4-2-64, claiming a portion of the property to be theirs and in their possession. According to them, they were not parties to the decree passed in Title suit No. 130 of 1959 and hence their interests were not bound by it. The petitioner resisted the claim case on several grounds. After having rejected all his objections, the court below has allowed the claim case holding that the interest of the claimants in the property in question was not bound under the decree and that they were in possession of that portion of the property through their agent. The petitioner, therefore has come in revision to this court.

(3.) Mr. Janardan Sinha, appearing in support of the rule, submitted that since the petitioner had purchased the property in court auction held in execution of the money decree obtained by opposite party No. 9 against opposite party No. 3, the claimants had no right to resist the delivery of possession or to institute a miscellaneous case for adjudication of their right, title and interest in the property. Their remedy is to apply under Order 21, Rule 100 of the Code after dispossession. Learned counsel further submitted that on merits also the learned Munsif has committed an illegality in exercise of his jurisdiction inasmuch as he has wrongly held that the claimants had a subsisting title or interest in the property or that they were in possession of it on the date of sale or on the date of the decree passed in Title suit No. 130 of 1959.