KAPILESHWAR JHA Vs. ANIRUDH JHA

JUDGEMENT

(1.) The question of law involved in this case is whether a settlee from an auction purchaser is a necessary party in a proceeding for setting aside the sale under Order 21, Rule 92.

(2.) The Raj Darbhanga obtained a decree for rent against the defendant 1st party with regard to a holding bearing khata No. 18 in village Bajraha. In execution the holding was sold on the 8th of April, 1937, and purchased by the Raj Darbhanga. Delivery of possession was given to Raj Darbhanga on the 3rd of September, 1937. Thereafter Raj Darbhanga made settlement of the holding with the plaintiffs. The plaintiffs were later on dispossessed of the holding by the defendants 1st party. In order to recover possession the plaintiffs instituted a title suit, namely, Title suit No. 178 of 1944, against the defendants 1st party. The suit was decreed on the 11th of April, 1945. The defendants 1st party preferred an appeal, but the appeal was dismissed by the Subordinate Judge on the 16th of November, 1946. Meanwhile the defendants 2nd party, who claimed to be the mortgagees of a portion of the holding, made an application under Order 21, Rule 90, Code of Civil Procedure for setting aside the sale held on the 8th of April, 1937. This miscellaneous case was numbered as Miscellaneous case No. 234 of 1946. The application of the defendants 2nd party was allowed ex parts on the 12th of April, 1947, and the sale in the execution case was set aside. It appears that the defendants 1st party deposited the decretal amount on the 12th of December, 1947, and the decretal amount was also withdrawn by Raj Darbhanga. The plaintiffs have brought the present suit for a declaration that the order passed in Miscellaneous case No. 234 of 1946, was fraudulent and was not binding upon them; firstly because they were not parties in the miscellaneous case, and secondly because the defendants 2nd party were only benamidars for the defendants 1st party against whom the plaintiffs had successfully established their title in a proper suit. The learned Munsif found that the plaintiffs had taken actual settlement from the Raj Darbhanga and they had no knowledge of the miscellaneous case and, therefore, the order passed in the miscellaneous case, setting aside the sale, was not binding upon the plaintiffs, since they were not made parties to it. The learned Munsif also held that Order 21, Rule 92, Code of Civil Procedure, was not a bar to the maintainability of the suit. Accordingly, the learned Munsif granted a decree in favour of the plaintiffs. In appeal, the lower appellate Court, acting upon an unreported decision of a Single Judge of this Court, the decision of B.K. Ray, J., in Civil Revn. No. 880 of 1945, D/- 22-1-1947, (A), held that the plaintiffs were not necessary parties to the proceedings in the miscellaneous case under Order 21, Rule 90, Code of Civil Procedure, and allowed the appeal. It was held by the lower appellate Court that the suit of the plaintiffs should be dismissed.

(3.) The main argument put forward on behalf of the plaintiff-appellants in this Court is that the lower appellate Court has misconstrued the provisions of Order 21, Rule 90, and Order 21, Rule 92, Code of Civil Procedure, and that the plaintiffs were necessary parties to the proceedings taken under Order 21, Rule 90, Code of Civil Procedure; and in the absence of notice to the plaintiffs the proceedings in the miscellaneous case were not binding upon them. The question at. issue in this appeal, therefore, depends upon the correct interpretation of the proviso to Order 21, Rule 92 (2), which is in the following terms:--