MAHESH NARAIN SINGH Vs. BESHESHAR LONIA

JUDGEMENT

(1.) This is an appeal from the appellate judgment of the Third Additional Subordinate Judge of Jaunpur oversetting a decision of a Munsif of the same district. Bisheshar Lonia executed a simple mortgage in favour of the plaintiffs- appellants on 15 September 1911. The security consisted of two houses, certain trees and a holding described as No. 12 and having an area of 1 bighas 19 biswas and 4 dhurs. This was originally an occupancy tenure held by the predecessors-in- title of the mortgagor. On 8 September 1887, Bisheshar Lonia appears to have relinquished the holding in favour of the zamindar Shah Mohammad Husain and obtained from the latter a patta in perpetuity at a uniform rate of rent. The patta provided that the grantee was to remain in possession and enjoyment of the holding from generation to generation. The leasehold property was therefore heritable. The document however did not prescribe any special rule of inheritance. The tenure sought to be created under this instrument was described as bataur sharamoian. The tenure created therefore was not the creature of statute but was the creature of a special contract and unless there was something repugnant to the statute or opposed to principles of public policy, such a tenure could be validly created by a zamindar.

(2.) The mortgagee sued on his mortgage and obtained a preliminary decree on 4 July 1924. A final decree was obtained on 4 December 1926. Bisheshar Lonia does not appear to have contested the suit on the ground that the holding was not transferable and that no decree for sale should or could be passed in respect of the mortgage security. On an application for execution being made by the decree-holders for sale of this property, notice under Order 21, Rule 66, Civil P.C., was issued to the judgment-debtor in due course, but the latter did not raise any objection on the score that the property was not saleable in execution of the decree. In due course, the decree was executed, the property was sold and eventually purchased by the decree-holders. The judgment-debtor applied under Order 21, Rule 90, Civil P. C., for avoidance of the sale on the ground that the proceedings were vitiated by fraud and material irregularity in publishing and conducting the sale. He also contended that the property in dispute could not be sold in execution of the decree inasmuch as it was the occupancy holding of the judgment-debtor. These pleas were repelled by the trial Court and the application was dismissed on 19 November 1928.

(3.) The judgment-debtor preferred an appeal which was heard by the Third Additional Subordinate Judge of Jaunpur. The learned Judge agreed with the first Court that the judgment-debtor had failed to substantiate that the sale was vitiated by fraud or material irregularity in publishing and conducting the sale, but he held that in view of certain decisions of this Court the leasehold property was not transferable. Reliance was placed upon Majid Husain V/s. Kurban Ali and Katwari V/s. Sita Ram A.I.R. 1921 All. 118). He further held that, although the defendant had not contested the suit on the ground of the nontransferability of the holding at earlier stages of the case either in defence of the suit or in response to the notice issued under Order 21, E. 66 of the Code, he is not estopped from raising the plea by his application under 0.21, E. 90, Civil P. C. I may state at once that I do not agree with the lower appellate Court on this point. Where a defendant or a judgment-debtor has a right and opportunity to contest the suit or an application for execution upon a specific ground and has not availed himself of that opportunity with the result that the suit is decided against him or that the decree is allowed to be fully executed against him, he cannot be allowed to raise that point at a later stage of the case.