IBRAR HUSSAIN Vs. RBKUNWAR SARDAR SINGH

JUDGEMENT

(1.) This is an appeal against a judgment and decree, dated 18 March 1939 of the Civil Judge of Moradabad in a suit for declaration that the decree passed in the election petition case No. 2 of 1937--of the Court of the District Judge of Naini Tal--was contrary to law and unenforceable and not fit to be executed.

(2.) On 13 January 1930, the plaintiff Sardar Singh was elected Chairman of the District Board of Moradabad. A few days later on 28 January 1936, a petition was filed by Chhotey Lal and Ram Kumar challenging his election and this petition was referred for decision to Mr. Hamilton by the Local Government under Section 850, District Boards Act. One of the charges on which the election of Sardar Singh was challenged related to certain corrupt practices which were indulged in the election, and a question arose whether an enquiry could be directed in this matter in deciding the election petition; and by an order, dated 28 November 1936, Mr. Hamilton held that evidence, was permissible with regard to corrupt practices. On 30 March 1937 Mr. Hamilton pronounced the final order in the case by which he declared the election to be invalid and he further disqualified Sardar Singh from seeking election for a period of four years. The Government, however, later on set aside the disqualification and directed a fresh election to be held.

(3.) The second election took place on 5 July 1937 and Sardar Singh was again elected Chairman of the Board. A second election petition was filed by the defendants, Ibrar Husain and Ram Kumar--the former of whom was a member of the District Board and the latter was one of the electors in the District Board constituency--challenging the election of Sardar Singh, and again the election was challenged inter alia on the ground of indulgence of corrupt practices. This petition was referred by the Local Government under Section 35C, District Boards Act, for decision to Mr. Gurney, and again a question arose before Mr. Gurney whether in deciding the election petition the charge of corrupt practices could be investigated and a further question was also raised before Mr. Gurney whether he had any jurisdiction to award costs. Mr. Gurney took the view that evidence with regard to corrupt practices was permissible and on 25 May 1938 he passed final orders in the case by which he set aside the election and directed a sum of Rs. 4148-5-0 as costs to be paid by Sardar Singh to the petitioners Ibrar Husain and Ram Kumar and he further disqualified Sardar Singh from election for a period of five years. Mr. Gurney at all material times was the District Judge of Kumaon. In due course, after that order was passed by Mr. Gurney a decree was prepared in the case declaring the election to be invalid and awarding Rs. 4148 5-0 as costs to Ibrar Husain and Ram Kumar against Sardar Singh. In due course, this decree was sent for execution to the Collector of Moradabad and there certain property owned by Sardar Singh was attached.