CHAUDHARI VIKRAM SINGH Vs. LEHRI SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit for possession of zamindari property and mesne profits. The facts giving rise to this appeal are to a great extent undisputed and may be stated : On 23 July 1934 Nawab Singh, defendant 3, and Babu Ram, father of Jaipal, defendant 4 mortgaged certain properties in favour of Lehri Singh, defendant 1 Girraj Singh, deceased brother of Lehri Singh and Narain Singh, defendant 2, for Rs. 3000. On 18 September 1924, a second mortgage was executed by the same persons in favour of the same mortgagees for Rs. 1300. The properties covered by the mortgages were in the village of Rori and in the village of Rasoolpur. On 7 August 1926, Nawab Singh and Babu Ram exchanged their properties which they had mortgaged for some properties in village Rasoolpur belonging to Randhir Singh and Vikram Singh plaintiffs, and the latter undertook the liability of paying the mortgages created by Nawab Singh. and Babu Ram. Suit No. 64 of 1930 was brought by the mortgagees on the basis of the two mortgages mentioned above against the original mortgagors and their transferees, namely, Randhir Singh and Vikram Singh. A preliminary decree was obtained on 27 October 1930 and this decree was made final on 5 December 1931.

(2.) The mortgagee-decree-holders applied for execution by sale of the properties belonging to Vikram Singh and Randhir Singh. On 14 April 1932 the civil Court transferred the decree to the Collector under the provisions of Section 68, Civil P.C., for execution. The judgment-debtors paid Rs. 2990 and the sale was therefore postponed, but the execution proceedings remained pending. There were certain infructuous sales (in the sense that they were set aside) on the first occasion on 20 May 1933 and on the second occasion some time afterwards (the exact date cannot be ascertained from the record). In the year 1935 the U.P. Regulation of Sales Act, 26 of 1934, came into force, and the Assistant Collector, First Class, Meerut, started proceedings under the said Act. A notice was issued on 22 January, 1936 under Section 3, Sub-section (3) of the Act for the purpose of fixing the net profits of the property and the multiple thereof by the Assistant Collector to the parties directing them to appear on 14 March 1936. Notice on the judgment-debtors was served by affixation, and the Assistant Collector on 14 March 1936 passed an order that the whole property except of khewat No. 2 mahal 6 biswas of the judgment-debtors in Mauza Rori be transferred to the decree-holders in full satisfaction of their decretal amount. On 25 January 1937 the property was finally transferred to the decree, holders for Rs. 7628 and the decree-holders obtained possession on 6 March 1937. Some time prior to this the judgment-debtors had presented an application that the orders for the transfer of the property passed on 14 March 1936 be set aside, but the Sub-Divisional Officer rejected the application on 19 September 1936.

(3.) The present suit was filed by Chaudhari Randhir Singh and Chaudhari Vikram Singh on 5 July 1937 for recovery of possession of the property sold and for mesne profits. The suit has been dismissed by the Court below and hence the plaintiffs have filed the present appeal. Chaudhari Randhir Singh died after the decision of the Court below, and the present appeal has been filed by Chaudhari Vikram Singh and the heirs of Chaudhari Randhir Singh. The plaintiffs alleged that the Circle Officer of Tahsil Ghaziabad, Mr. Raghunath Das Tondon, had no power to take proceedings under Act No. 26 of 1934, the U.P. Regulation of Sales Act, according to Section 10 of the said Act, and the transfer that was effected in favour of the decree-holders on 25 January 1937 was totally invalid and null and void, that the notice that was issued under the Act on 22 January, 1936 was never served on the plaintiffs and that the order for the transfer of the property was obtained by the defendants behind the back of the plaintiffs. The main contention on which the suit was brought was that all the proceedings taken by the Circle Officer under Act 26 of 1934 were invalid and the possession of the defendants over the property was that of usurpers and that the plaintiffs were entitled to recover possession of the property which was wrongfully sold. It may be mentioned -- for a great deal has been made of the fact by learned Counsel for the respondents--that there were no allegations in the plaint that the plaintiffs had suffered any pecuniary damage by reason of the proceedings under Act No. 26 of 1934 beyond the statement that the proceedings were entirely illegal and inoperative. The defence was that the proceedings under Act No. 26 of 1934 were taken by a competent Court and were binding on the plaintiffs, that the plaintiff's had really benefited by the proceedings and that the "claim was not entertainable in a civil Court. It was also said that the plaintiffs suit was barred by time.