SUNDAR DAS KHETRY, AND ON HIS DEATH, HIS HEIRS AND LEGAL REPRESENTATIVES SHAMBHU NATH KHETRY Vs. RAGHUNATH DAS

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs to establish their title to and recover possession of certain lease-hold properties along with the colliery, engines, machinery, tools, plant and whatever else there might be standing thereon, The contest is between the plaintiffs as purchasers from the Official Assignee of Bengal and the defendants as purchasers in execution of a decree.

(2.) The facts are shortly as follow?: On 1st December 1909, the defendants granted a potta of coal lands to Atul Nath Chatterjee and Rojindra Nath Chatterjee at an annual jama of Rs. 3,623-11-10 and a salami of Rs. 4,000. The lessees were two of four brothers, the others being Aghore Nath Chatterjee and Chandra Nath Chatterjee. The four brothers, who were members of a joint family, became heavily indebted to several creditors. Ola 6th December 1903, the present defendants filed a suit against their lessees for rent under the pitta, and on 23rd June 1904, obtained a decree against them for Rs. 3,090 10-6 and costs Rs. 350-7. The other two brothers were also parties to that suit as pro forma defendants. On 13th July 1901, the defendants applied for execution of their decree by attachment of the immoveable properties belonging to the judgment-debtors. The lease-bold property was accordingly attached and 5th September 1904 was fixed for sale. On that day, the judgment-debtors Nos. 1 and 2 applied for time to enable them to raise money by sale of the attached property, and the sale was accordingly adjourned until 10th September. On 8th September, all four brothers filed their petition in the Court for the Relief of Insolvent-debtors at Calcutta and on the same day, the Court made the usual vesting order under Section 7 of the Indian Insolvent Act. On 30th September 1904, the defendants applied to the Subordinate Judge of Burdwan to substitute the Official Assignee in the place of the judgment debtors in the execution proceedings under their decree. On 23rd November, notice was ordered to issue to the Official Assignee, to show cause why he should not be substituted in the place of the judgment- debtors and it was made returnable on 22nd December 1904. On 10th January 1905, the Subordinate Judge, finding that Mr. Miller had been duly served with the notice, ordered that he be substituted in the place of the judgment-debtors and 6th March 1905 was fixed for the sale of the attached property. On that day, the property was sold and purchased by the defendants, the decree-holders. On 18th April 1905, the sale was confirmed and on 14th June 1905 an order was made for delivery of possession to the defendants as purchasers and they accordingly took possession under it. Meanwhile, on 23rd May 1905, the Official Assignee applied to the Insolvency Court and obtained an order that he should be at liberty to sell either by public auction or private contract to the best purchaser the properties of the insolvents including the leasehold premises in question. He did not, as a matter of fact, sell at that time; but on 24th March 1908, he sold the premises now in question to Harmusji Pistonji Banker, alias Bilimoria, a Parsee gentleman of Asansole. On 24th June 1908, three months later, Banker sold the property to the present plaintiffs. On 16th July 1908, this suit was instituted to recover possession of the property.

(3.) The learned Subordinate Judge has decreed the plaintiffs suit and the defendants have appealed.