RADHA KRISHNA Vs. BISHESHAR SAHAY

JUDGEMENT

(1.) Rai Gudar Sahay, a landowner in the District of Mozaffarpur, 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 Mouza 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 realise 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 in noteworthy were considerably less than the nominal values. In January, 1889, he bought a share nominally worth Rs. 7,140 for Rs. 3,266; in March, 1891, a share nominally worth Rs. 15,209 for Rs. 5,000; and In November, J894, shares nominally worth Rs. 24,619 for Rs. 7,476. This left something under five 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 8, 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 be 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.) The respondent Bisheshar denied that Hari Narain was his benamidar, and said that Hari Narain was the true purchaser, who had since sold and transferred to him. Ha also took the point of the Statute of Limitations.