AKHAURI HERAMBO NARAIN SINHA Vs. JAMUNA SONAR

JUDGEMENT

(1.) This is an application by the liquidator of the Friends Co-operative Society, Dumraon, for revision of the order of the Munsif of Buxar allowing an application under Order 21, Rule 97, Civil P.C., in respect of 15-16ths of the property in dispute. The petitioner filed a certificate under he Bihar and Orissa Public Demands Recovery Act 1914, against one Thakur Prasad and notice under Section 7 was served on 30 June 1930. One Piari Kuar applied on 8 December 1930, for execution of her money decree against 13 persons, being Thakur Prasad and other members of his joint Mitakshara family. In this execution the petitioner asked that his charge on the property in suit consisting of houses which were to be sold in execution be declared. But the Court did not grant a declaration of the charge but only directed notification of the petitioner's charge under Section 8 at the time of sale and the High Court on revision, while acknowledging the existence of the charge, declined to make the declaration as the sale had taken place. On 8 April 1931, the present opposite party purchased the property at the sale in execution of Piari Kuar's decree. The petitioner obtained stay in the High Court which lasted from 8 May till 24 November 1931.

(2.) When the property was on sale under the Public Demands Recovery Act at the instance of the petitioner the opposite party, on 25 May 1931, filed a claim to it under Section 21 which was dismissed on 4 June 1931, on which date the petitioner purchased the present property in dispute in the certificate sale. He obtained delivery on 28 September 1931. In February 1933 the opposite party applied for delivery of possession of the property purchased by him but could not obtain it as the petitioner was found to be in possession. The opposite party applied under Order 21, Rule 97 with the result already mentioned. Now at the certificate sale only the right, title and interest of Thakur Prasad, judgment-debtor, passed. The contention of the present applicant however was that Section 25, Public Demands Recovery Act, operated to make the decision of 4 June 1931 conclusive against the opposite party who had not brought within one year of the date a suit to establish his title to the property his petition in respect of which was dismissed under Section 24.

(3.) The learned Munsif negatived the contention on the ground that as the certificate Court had no jurisdiction to attach and sell or give possession of the share in the family property to the members of Thakur Prasad's family who were not named in the certificate, the claim under Section 21 of the present opposite party and the order under Section 24 could not have related to 15/16ths of the property. He accordingly allowed the opposite party to take out dakhaldehani afresh with regard to 15/16ths of the houses in question and directed him to be put in possession jointly with the opposite party. On behalf of the petitioner it is urged that as the petitioner was clearly in possession on his own behalf in good faith, no other consideration could arise, that (as indeed the Munsif himself conceded in so many words) the question of title could not be gone into and that the order for joint possession is unsound.