FANI BHUSHAN BHUIAN Vs. SURENDRA NATH DAS, MINOR BY HIS BROTHER IN LAW AND GUARDIAN AD LITEM NEMAI CHARAN HAZRA

JUDGEMENT

(1.) This second appeal arises out of an application made by the respondent No. 1 before us, Surendra Nath Das, to set aside an execution sale.

(2.) The relevant facts are as follows:--The respondent No. 2, as landlord, obtained on the 9th February 1915 a decree under the Bengal Tenancy Act for arrears of rent in respect of a holding of which three adults, Dinu Das, Thakardas Das, and Rupai Das, and a minor, Surendra Nath Das, were co-tenants. It appears that these parsons were members of the same family, though their precise relationship is not apparent on the record. I will say at once that Surendra Nath Das was at all material times a minor and still appears as such on the record, though he may now have attained his majority. He was represented in the suit by his mother as his guardian ad litem, and it is not disputed that the decree was a good and valid decree as well against the infant as against the adult defendants. The mother of the infant died on the 9 October 1916. The decree holder apparently was not aware of this death. An application for execution was filed in 1917 in which the mother's name appears as the minor's guardian. A notice was issued under Order XXI, Rule 22, addressed to the adult co-tenants and to the minor and his mother. On the book of the notice there is an affidavit by the serving peon that it was delivered, at the house at which all the co-tenants were living, to Surendra Nath, then apparently about thirteen years old. The holding was sold by public auction on the 19 May 1917 and was purchased for Rs. 250 by the appellant, a third party having no connection with the parties to the suit.

(3.) The proceedings which followed are somewhat surprising and illustrate the difficulties with which decree-holders have to contend in this country, First on the 19 June 1917, the judgment-debtor No. 1, Dinu Das, applied to have the sale set aside. That application was dismissed on the 1 September 1917, the sale being confirmed on the same day. Possession was delivered to the auction purchaser, the present appellant, on the 4 December 1918. On the 6 July 1919, however, the judgment debtors Nos. 2 and 3, undeterred by the failure of the judgment debtor No. 1, made a second application to have the sale set aside. The application met with the same fate as its predecessor and was dismissed on the 6 July 1919, It is scarcely credible but a third application for the same purpose--the application with which we are now concerned--was made by Surendra Nath, represented by his brother-in-law as his next friend, on the 21 July 1919. The application was thrown out by the Court of execution, but on appeal to the District Judge's Court it succeeded. The success so obtained proves at any rate the virtue of persistence. The bare statement of the facts sufficiently explains why the case turns not on the merits but on points of form.