KEDAR NATH OJHA Vs. KSHIRODA DASSYA

JUDGEMENT

(1.) This is an appeal on behalf of the decree-holder auction-purchaser and arises out of certain proceedings purported to have been made under Order 21, Rule 100, Civil P.C. A preliminary objection has been taken to the hearing of this appeal on the ground that no second appeal lies to this Court as this is not a matter which comes under Section 47, Civil P.C. The answer to this preliminary objection is furnished by a recent decision of this Court in the Full Bench case of Kailash Ch. Tarafdar V/s. Gopal Chandra AIR 1926 Cal 798 in which it has been laid down that where a question of delivery of possession is raised between the parties to the suit, the auction-purchaser decree-holder on the one hand and the judgment-debtor on the other, the matter comes under Section 47. The preliminary objection must therefore be overruled. In order to appreciate the points in controversy in the present appeal it is necessary to state a few facts. Defendants 1, 2 and 3 had mortgaged the disputed properties which form a portion of a tenure to the present appellant. The appellant brought a suit on the footing of the mortgage; in that suit there were impleaded as parties mortgagors defendants 1 to 3, defendants 4 to 7 who were purchasers of a portion of the mortgaged properties, defendants 8 and 9 on the ground that the mortgagors have set up a tenancy in their favour, and defendant 10 who is a mortgagee of a different portion of the same tenure.

(2.) The decree was passed on the footing of the mortgage. It appears that subsequent to the mortgage the landlord of the tenure in question obtained a decree for rent against the recorded tenants and ho claimed that he acquired a charge on the entire tenure under the provision of Section 171, Ben. Ten. Act, as against all the defendants. The defendant 8 happens to be the mother of defendants 1, 2 and 3, She mortgagors in the suit, and defendant 9 is their brother-in-law. The mortgage suit was contested by defendant 10 alone. The defence of this defendant was that the decree obtained by the landlord was not a decree for rent inasmuch as defendants 1,2 and 3 did not represent the tenancy. His contention further was that they (defendant 1 to 3) had another brother who died and that neither he nor his mother who succeeded to his estate on his death was made a party to the rent suit. The decree was not a rent decree and therefore there can be no charge in respect of the entire tenure under the provision of Section 171, Ben. Ten. Act. An express issue was raised on this question which formed Issue 2 in the suit. With reference to that issue it was decided that it was not satisfactorily proved that Hriday left four sons on his death, and that the evidence given for the defence was contradictory on this point and no reliance could be placed on it. In this view there was not only a mortgage decree against the defendant in respect of the mortgaged properties but the defendant was further directed to pay a sum of Rs. 126-3-3 and other debts Rs. 201-6-0 with proportionate costs and interests within a week and in default the sum was declared to be first charge on properties of schedule Kha which is included in the tenure. This decree for sale of the mortgaged properties against all the defendants including defendant 8 who is the respondent before us was apparently not appealed from.

(3.) When the appellant proceeded to take delivery of possession proceedings were started at the instance of defendant 8 purported to be under Order 21, Rule 100, Civil P.C. She contended that as there was a fourth son of Hriday and as she as his mother succeeded to the inheritance of the fourth son and as the fourth son was no party to the mortgage suit or did not join in the mortgage, she was claiming possession of 1/4 of the mortgaged properties of her own account and therefore to the extent of her possession in the 1/4 share she ought not to be dispossessed. It has been argued on behalf of the decree holder that this contention could not be raised in these proceedings seeing that defendant 8 who was a party in the mortgage suit did not raise this contention which she ought to have raised. The contention really was that this was a matter which ought to have been made a ground of attack in the suit itself and it not having been raised on principles analogous to the principle of res judicata the question ought not to be allowed to be raised in the present proceedings. This contention of the decree-holder however did not prevail with the Munsif who tried the matter in the first instance and the application under Order 21, Rule 100, Civil P.C., was allowed. An appeal was taken to the Court of the District Judge of Bankura who took the same view as the Munsif and he confirmed the decision of the Munsif. The present appeal is directed against the concurrent judgments of the Courts below.