RAI RADHA KRISHNA Vs. BISHESHAR SAHAY

JUDGEMENT

(1.) RAI Gudar Sahay, a landowner in the district of Mozaffapur, borrowed from a joint family of moneylenders to whom the defendants belong, a sum of Rs. 16,000 on May 2, 1873, and mortgaged for it his village Mauza Kataya. The family afterwards separated, and upon the partition of their property various fractions in the mortgage became allotted to the different members. They, however, all joined in a suit brought in 1886 to enforce the mortgage, and in the ordinary course obtained a decree on May 31, 1886, under which if the money was not paid the property was to be brought to sale.

(2.) FOR a time no steps were taken to realize this decree, and the judgment debtor paid off portions by purchasing, through a benamidar, the shares of some of the decree-holders, for prices which it is noteworthy were considerably less than the nominal values. In January, 1889, he bought a share nominally worth Rs. 7140 for Rs. 3266; in March, 1891, a share nominally worth Rs. 15,209 for Rs. 5000; and in November, 1894, shares nominally worth Rs. 24,619 for Rs. 7476. This left something under 5 annas of the judgment unsatisfied, and these were held in severalty by the respondent Bisheshar Sahay and two of his brothers. In 1898 Bisheshar, on behalf of himself and the remaining decree holders, took proceedings to have the decree executed, and the property was sold by the Court on April 18, 1899. By that time the judgment debtor was dead, and his widow was proceeded against in his place. Upon the record of the execution proceedings one Hari Narain was declared purchaser of the village, and he obtained a certificate of sale and possession. The widow applied to set aside the sale on various grounds, but failed. She died in 1904 and was succeeded by her daughter, who died in 1910. Upon the daughter's death the estate of the original judgment debtor devolved upon the appellants as the next heirs, and they in 1914 instituted the present suit, alleging that the proceedings at the sale had been collusive and fraudulent, that they had recently discovered that Bisheshar had applied to be allowed to bid and had been refused leave, but in spite of the refusal had purchased the village in the name of Hari Narain, who was his benamidar. The present appellants made certain other points which were disposed of in the course of the proceedings.

(3.) IT must be taken to be true that he had applied to the Court for leave to bid and had been refused. Hari Narain purchased the property for Rs. 625 only and sold it, or purported to sell it, to Bisheshar on December 9, 1902, for Rs. 1500. The case came before the Subordinate Judge, who by his decree, dated December 27, 1916, decided in favour of the plaintiffs, the present appellants. He held that the purchase by Hari Narain was made by him as benamidar for Bisheshar Sahay, and he thought that the Indian Limitation Act did not apply, because he held that it was not a suit to set aside a voidable sale, but a suit to recover possession of immovable property by the heirs in reversion on the death of the last female heir, and was therefore covered by Article 141 of the Indian Limitation Act.