HEWA MAL Vs. KARUNAMOY GUPTA

JUDGEMENT

(1.) This is as appeal on behalf of the plaintiff in a suit for declaration of title to immoveable property and confirmation of possession thereof. The property admittedly belonged to a person by name Dhanukdhari Singh. The case for the plaintiff is that in execution of a money- decree which he held against the admitted owner, he purchased the property On the 19th February 1906, that the defendant in execution of another decree against the same judgment- debtor purchased the property on the 20th January 1907, and that under these circumstances, the defendant has acquired no title to the property and is consequently not entitled to interfere with his possession. The defendant resisted the claim substantially on two grounds, namely, first that the decree which was the foundation of the title of the plaintiff was fraudulent and collusive, and, secondly, that the execution sale was inoperative to pass any title to the plaintiff, because it was (irregular and had been held by a Court which had no jurisdiction to deal with the matter. The Court of first instance, found that the decree was fraudulent and collusive and dismissed the suit, Upon appeal, the Subordinate Judge has reversed that finding and has held that the decree was not fraudulent but was based upon a promissory note executed for valuable consideration. The Subordinate Judge, however, has affirmed the decree of dismissal on the ground that the Court in which the execution proceedings took place had no jurisdiction to deal with the matter, and that, at any rate, the sale was vitiated by grave irregularities.

(2.) The plaintiff has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been challenged on two grounds; namely first, that the Court by which the execution sale was held was a Court of competent jurisdiction and that at any rate as no objection was taken by the judgment-debtor at the time to the jurisdiction of the Court, it is too late for the defendant to take exception on that ground on the present litigation; and secondly, that no question of irregularity in the proceedings antecedent to the sale can be raised or considered in the present proceedings. In our opinion, both these objections are well founded and must prevail.

(3.) In support of the first ground, it has -been pointed out by the learned Vakil for the appellant that the decree was obtained by the plaintiff on the 17th March 1903 in the Court of a Munsif who had jurisdiction to try suits of the value of Rs. 2,000. The application for execution of the decree was made in the Court of the same Munsif for recovery of the sum of Rs. 1,707. The properties appear to have been attached but the proceedings were subsequently dismissed for default. There was a second application for execution which was also infrucfcuous. On the 27th September 1905, the decree-holder applied for execution of the decree before the Munsif who had jurisdiction to entertain a suit of the value of Rs. 2,000. This Munsif, however, was subsequently transferred, and the result was that by an order of the District Judge, the execution proceedings pending before iim were transferred to the Court of the Subordinate Judge, Babu Ram Lal Das. No objection was taken by the judgment-debtor, and the sale, as we have already stated, was held on the 19th February 1906. It is now suggested, upon the authority of the decision of this Court in the case of Kishori Mohan Sett v. Gal Mohammad Saha 15 C. 177 that it was not competent to the District Judge to transfer a pending execution proceeding from the Court of the Munsif to that of the Subordinate Judge, and that consequently the Subordinate Judge when he held the sale must be deemed to have acted without jurisdiction. In our opinion, this contention is manifestly fallacious.