BAIDYANATH RAI Vs. SATYANARAIN RAI

JUDGEMENT

(1.) This is an appeal under the Letters Patent by the defendants first party from the decision of a Single Judge of this Court dated 5-12-1952, by which he reversed the concurred decisions of the Courts below which dismissed the suit.

(2.) The lands involved in this litigation are situate in two villages, namely, Bathaili Debi Jagir and Kamalpur Jagir comprised in khewat No. 1 of the respective villages belonging formerly to Silanath Jha, the ancestor of the defendants second party. The latter also owned and possessed eight annas share in another tenure bearing khewat No. 24 in another village Bathaili Dhanoat. Ban-khandi Rai, the ancestor of the plaintiffs respondents acquired these three tenures, from Silanath by virtue of a registered deed of sale dated 7-2-1933 and went info possession thereof. Before this purchase, these three tenures were subject of attachment before judgment. Bansman Rai, the ancestor of the defendants first party, had instituted Money Suit No. 20 of 1931 against Silanath on 24-2-1931 and on the same date obtained attachment before judgment (Ext. D) of the said tenures. In due course the money suit was decreed on 30-11-1931, that is, before the plaintiffs' purchase, and the attachment before judgment was made absolute. Bansman, the decree-holder, levied execution and the three tenures were advertised for sale without fresh attachment and were purchased by the decree holder himself at auction sale on 1-5-1933. Thereafter, the plaintiffs filed an application under Order 21 rule 90 of the Code of Civil Procedure on 30-5-1953 for setting aside the auction sale on 'the grounds, inter alia, that the writ of attachment was not properly served but that it was kept concealed from them, which was numbered as Miscellaneous Case No. 86 of 1933. A compromise was effected therein between the parties on 18-11-1.933, by which Banlchandi agreed to satisfy the decretal dues in two instalments, when the sale was to be set aside; if not, the sale was to be confirmed. Bankhandi made default, with the result that the sale was eventually confirmed on 29-5-1934. Thereafter, Bailsman, the decree-holder, auction-purchaser, obtained delivery of possession of the disputed properties through Court on 15-6-1934. It will be observed that on the facts as they stand there is a competition between two sales, one a private one in favour of the plaintiffs respondents and the other a Court sale in favour of the appellants. The former was prior in time, but by reason of the earlier attachment before judgment, the Court sale in favour of the appellants, though later in time, had priority over the plaintiffs sale, and this position was affirmed by the said compromise. The matter ended there for the time being.

(3.) It will be seen that before the sale of date 7-2-1933 in favour of the plaintiffs but after the attachment before judgment on 24-2-1931, Darbhanga Raj, the superior landlord, ignoring the previous purchases, instituted Rent Suit No. 2235 of 1932 against the original tenure-holder, Silanath and his sons, in respect of khata No. 24 obtained a decree and in execution of it the said tenure was put up for sale on 10-1-1934 and purchased by Bankhandi benami in the name of his son Satyanarain (plaintiff No. 1) probably to secure their previous purchase and reinforce their title. Satya-narain took delivery of possession of the khewat on 10.-2-1936 dispossessing Bansman and others, including one Jagianand and Kausalya Dai, a daughter of Bansman. The last two had taken transfer of portions of the khewat previously. Bansman and his sons instituted Title Suit No. 61 of 1937 against Bankhandi and his sons and heirs for a declaration of their title and possession on the grounds that the decree obtained by Darbhanga Raj was a money decree, that the execution which followed was a money execution and the auction sale was a money sale and that consequently their purchase at auction being prior in time by reason of the previous attachment before judgment prevailed over the defendants' purchase and their title, therefore, remained intact and unaffected by the subsequent purchase of the defendants. Bansman died during the pendency of this suit which was continued by his sons and widow. The defendants, in reply, attacked the validity of the attachment before judgment and impugned the plaintiffs' title and asserted their own. The trial Court held that the decree obtained by the Darbhanga Raj was a money decree and the execution a money execution. That being so the interests of the plaintiffs were not affected, but notwithstanding these findings, it dismissed the plaintiffs" suit on the ground that the attachment before judgment in Money Suit No. 20 of 1931 at the instance of Bansman was invalid and consequently his title could not prevail over that of Bankhandi who had taken a kebala prior to their purchase at the auction sale. An appeal against the judgment and decree by the descendants of Bansmam failed. Thus Bankhandi's title with respect to khewat No. 24 was upheld.