KAMESHWAR SINGH BAHADUR Vs. PRASAD SINGH

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit in which the plaintiff- respondents claimed a declaration that certain tenures, more particularly described in the schedule to the plaint, having been purchased by them in execution of a mortgage decree, could not be attached and sold in certificate proceedings, the proceedings in question having the effect of a money decree only. They claimed an injunction restraining the defendants from putting up the properties for sale. The certificate proceedings in question were commenced on 4 September 1934, against one Raghubans Lal, Ramnarain Lal and Jadubans Lal for arrears of mukarrari rent for the years 1338 to 1341 Fasli in respect of villages Neori Silounja, Parwaria, Sadwa, Parsauna and Ankurahwan.

(2.) These certificate proceedings were started whilst the proceedings in execution of the plaintiffs mortgage decree were pending, a decree absolute in the mortgage suit having been obtained in the High Court on 15 February 1934; proceedings in the execution proceedings having commenced in the same year. The plaintiffs purchased some of the properties, the subject-matter of the certificate proceedings, on 15 January 1935. As regards the tenures the khewats showed Harbans, Raghubans and Jadubans Lal as tenants. Jadubans had died in the year 1922, Shivnarain was substituted in his place in the proceedings, and Brijkishore Lal was added as a party on 2 January, 1935. Shamnarain and Dipnarain, sons of Raghubans, Alakhnarain, son of Harbans and Bechu, son of Shamnarain, were not made parties.

(3.) The Judge in the Court below has held that Raghubans and his sons being joint (which is admitted), Raghubans being the karta, the sons were represented in the proceedings. Harbans having died during the proceedings, Raghubans being the karta and manager of the affairs of Harbans, Harbans sons also were duly represented in the certificate proceedings. In these certificate proceedings Raghubans Lal, Ramnarain Lal, and Brijkishore Lal filed objections, their contention being that as there were two separate tenures in the villages the certificate proceedings were not maintainable in their present form. This objection was overruled by the certificate officer and the Collector, but before the Divisional Com-missioner a compromise was entered into.