BARODA KANTA BOSE Vs. CHUNDER KANTA GHOSE

JUDGEMENT

(1.) The only question argued in this appeal was whether the appellants, the plaintiffs in the suit, are bound by a certain order, whereby a sale of the property in suit held in execution of a decree was set aside. If they are so bound, then admittedly their suit fails and this appeal must likewise fail.

(2.) The property in question, a jama comprising some 22 bighas of land, was held by some of the present defendants under one Radhica Chowdhurani and certain other persons, who were co-sharers with her in the zemindari. Radhica Chowdhurani obtained a decree against those defendants to the extent of her share in the zemindari for arrears of rent and, on the 5th February, 1886, brought the jama to sale in execution of her decree. It was purchased by one Natabar Ghose, the father of defendant No. 30, as benamdar for the plaintiffs, but neither he nor the plaintiffs ever obtained possession. The present suit was instituted, on the 3rd February, 1898, for a declaration of the plaintiffs title as purchasers at the sale of the 5th February, 1886, and for possession. It was pleaded, inter alia, by the above-mentioned defendants, in answer to the suit, that they never knew of the sale under which the plaintiffs claimed and that the suit and decree of Radhica Choudhurani as well as the sale in execution were all fraudulent. One of the issues (the 8th) framed by the Court of First Instance raised the question whether the plaintiffs had purchased the property in suit, and whether, if so, they acquired a title to it by their purchase.

(3.) Shortly after the suit was instituted, two of the same defendants applied under Sections. 244 and 311 of the Civil P. C. to the Court of the Munsiff of Bagirhat to have the sale of the 5 February, 1886, set aside on, the ground of fraud and material irregularity, making the legal representatives of the decree-holder and of Natabar Ghose, both of whom had in the meantime died, parties respondent. The Munsiff dismissed this application; but, on appeal, his order was, on the 5 September, 1898, reversed by the Subordinate Judge and the sale set aside. There was then an appeal to this Court, which resulted in a remand to the Subordinate Judge for trial of the application on the merits. The Subordinate Judge on remand again ordered that the sale be set aside, on this occasion as being fraudulent, and his order was affirmed on a further appeal to this Court.