HEMENDRA CHANDRA MULLICK Vs. BALLAVI DEVI

JUDGEMENT

(1.) In execution of a money decree obtains by Kedar Nath Ghosh against Jangeswar Pande for Rs. 1,109, in the Court of the Munsif of Dhanbad, the decree- holder attached a house which he alleged to belong to the judgment-debtor. Mt. Ballavi Devi, the daughter of the judgment-debtor, thereupon applied for release of the property stating that it was hers. The claim was overruled and the claimant then instituted a suit to establish her title to the property and prayed for stay of the sale pending the disposal of the suit. The Court directed that the sale would be stayed provided the claimant deposited one year's interest on the decretal amount.

(2.) She failed to do this with the result that the property was put up for sale on 21 September 1928, and purchased by Hemendra Chandra Mullick for Rs. 1,0- 44-10-0. The purchase price was deposited in Court and withdrawn by the decree- holder. Delivery of possession of the property was given to the auction-purchaser in February 1928 Ballavi Devi's suit was dismissed in August 1929, but on appeal to the District Judge the suit was decreed in September 1930. She then applied to the Munsif of Dhanbad to be restored to possession of the house, possession of which had already been given to the auction-purchaser. She also applied for mesne profits for the period during which she was out of possession and for compensation for damage which she alleged had been caused by the auction purchaser while he was in possession.

(3.) The first Court held that the application was covered by Section 144, Civil P.C, and that the applicant was entitled to the reliefs prayed for The amount of mesne profits and compensation was left to be determined by a Commissioner. Against that order the auction-purchaser appealed to the District Judge who held that, even if the application was not governed by Section 144, Civil P.C. the Court had inherent power under Section 151 of the Code to make the order appealed against. In second appeal it is contended by the learned advocate for the auction- purchaser appellant that Section 144 has no application to the facts of the case. With that contention I am in agreement. Section 144 applies when the decree, in execution of which a person is dispossessed, is reversed or varied. In the present case the decree passed by the Munsif of Dhanbad in the money suit of Kedar Nath has neither been reversed nor varied.