RAM SWAROOP MAHTO Vs. DURGA MAHTO

JUDGEMENT

(1.) In the suit out of which this Second Appeal has arisen the appellants were plaintiffs and respondents were defendants and in that suit the two material issues were, first, whether the auction sale dated 7-3-1975 and delivery of possession dated 25-8-1977 are legally invalid and not binding on the plaintiffs, and secondly, whether the plaintiffs had title and possession over the dispute suit land.

(2.) The salient facts of the case are not in dispute. The only question raised is purely question of law - the maintainability of the action brought by the plaintiffs who have been non-suited by the Trial Court and decree affirmed by the Court of appeal.

(3.) The facts of the case are as follows. Bhageru Mahto, father of the appellants in the capacity of karta of joint family property, brought Title Suit No.94 of 1948 in the Court of Munsif, Biharsharif for declaration of title and recovery of possession in respect of 0.03 acres of land forming part of plot No. 1616 of village Balbhadrasarai. The suit was decreed with costs. The Decree holder levied Execution Case No. 54 of 1974 for the execution of cost awarded by the appellate Court and in execution 0.28 acres of land of joint family were auction sold and purchased by the Decree-holder. On 2-6-1975 sale certificate was issued. The appellants (sons of Judgment-debtor) filed an application under Order XXI Rule 90 of the Code of Civil Procedure for setting aside the auction sale. The Executing Court directed the defendants to deposit 12 1/2 percent of the sale of money which he failed to deposit. The application under Order XXI Rule 90 C.P.C. was dismissed for default. The appeal was filed against the said order which was held to be not maintainable. The sale was affirmed and delivery of possession was effected to the Decree-holder. The respondents are sons and grand sons of auction purchaser, Faujdari Mahto.