RAGHUBAR DAYAL Vs. BANKE LAL

JUDGEMENT

(1.) This appeal is connected with first appeals Nos. 115 and 116 of 1898, and second appeal No. 405 of 1897, in which we have just given judgment. The plaintiffs-respondents here are the persons who were plaintiffs in those cases. They claim by virtue of the same execution sale of the 20 November 1885, of mauza Saidpur that we have discussed in our previous judgments. The defendant- appellant purchased certain property included in Saidpur in execution of a Revenue Court's decree obtained by himself against the same judgment-debtors for a share of the profits village Saidpur, under Section 93(h) of the N.-W.P. Rent Act, 1881. His purchase took place on the 3 November 1885. It has been suggested during the hearing of this appeal that that purchase was set aside and remained set aside at the date of the plaintiff's subsequent purchase of the 20 November 1885. No such suggestion appears to have been made in either of the Courts below, where the whole case proceeded on the assumption that the purchase of the defendant was in force on the 20 November 1885, when the plaintiffs purchased. We must proceed upon that view here. The defendant obtained possession in July 1886. The plaintiffs purchase of the 20 November 1885 was set aside on the 5 May 1886, but was ultimately confirmed in a suit brought by them for the purpose against their judgment-debtors only, by an appellate decree of this Court in May 1888, under circumstances which are fully stated in our judgments in the first appeals. In the present suit the plaintiffs claim is for possession of three properties, known respectively as the Sagbari garden, Nauda Bagh, and Safri Bagh. The suit was decreed on appeal by the Lower Appellate Court, and from that decision the defendant now appeals.

(2.) The first question discussed in this appeal Was as to the effect of a judgment of the District Judge of Bareilly passed on the 24 January 1890. That was a suit brought by the plaintiffs for mesne profits of the village Saidpur. The present defendant-appellant was made a defendant to that suit under Section 32 of the Civil P. C., inasmuch as he alleged that part of the mesne profits claimed were profits of the property which he had purchased on the 3 of November 1885, and he contended that inasmuch as he had purchased that property the plaintiffs had no right to any profits arising from it from the date of that sale. It is conceded that the decree of the District Judge decided between the present plaintiffs and the present defendant that the land did not pass to the present defendant under the sale of the 3 November 1885. If anything passed it was the trees and such rights over the land as were necessary for the defendant's enjoyment of the trees. I think therefore that the Lower Appellate Court was right in decreeing the present claim so far as the land is concerned. That was finally decided between the parties by the decree of the 24 January 1890. There remains the right of the defendant in respect of the trees. As to this the matter was not, in my opinion, determined by the decree of the 24 January 1890, and remains open. That was a suit for mesne profits arising out of the land, and there was no real issue as to the ownership of the trees. Now, confining the case to the trees, the defendant's purchase was prior in date to that of the plaintiffs . The Lower Appellate Court has nevertheless held that the plaintiffs purchase was entitled to priority on two grounds. The first ground is that, having regard to Section 285 of the Civil P. C., the Revenue Court had no jurisdiction to sell the property on the 3 November 1885, as it was already under attachment by a Civil Court in execution of Kalka Prasad's decree, under which the plaintiffs ultimately purchased. The second ground is that the defendant's purchase was invalid by reason of Section 171 of the Rent Act, as it was not shown that the judgment-creditor, before applying for execution against the immovable property, had failed to obtain satisfaction of the decree by execution against the person or moveable property of the debtor.

(3.) I propose to consider first the second of these grounds. I think that the decision of the Lower Appellate Court is wrong. The immoveable property against which execution was applied for was not a mahal or a share of a mahal. Section 172 of the Rent Act therefore governed the execution. That section makes applicable, amongst other provisions, the provisions of Section 170 relating to moveable property, and Section 170 provides that " no irregularity in publishing or conducting a sale of any movable property under an execution shall vitiate such sale." By reason of Section 172 it follows that the irregularity under Section 171 would not vitiate the sale of this immovable property. The non-compliance with the provisions of Section 171 was not, I think, more than an irregularity. Apart from the objection under Section 285 of the Code, the Revenue Court had undoubted jurisdiction in the matter. As the sale of the 3 November 1885, was not vitiated by the irregularity, the first ground upon which the Lower Appellate Court has given priority to the plaintiffs subsequent purchase in my opinion fails.