SUNDER DEBI ALIAS RADHA DEBI Vs. DAMODAR SHUKUL

JUDGEMENT

(1.) This an application in revision against an order passed by Babu Mahabir Prasad, Subordinate Judge of Muzaffarpur on 24 September 1942 allowing an application under Order 21 Rule 100, Civil P.C. It is contended that the applicant opposite party had no right to present an application under Order 21, Rule 100, Civil P.C., by reason of previous steps and orders taken and passed in the same execution case. The material facts are as follows. The present petitioner obtained a money decree against the sons of Bhola Mahto, and in execution of that decree brought certain property to sale and purchased it herself and subsequently took delivery of possession on 22 February, 1942. During the execution proceedings, Damodar Shukul, opposite party No. l, filed two petitions on 17 September 1941 and 18 September 1941 asking that two encumbrances on different portions of property sold should be notified in the sale proclamation. These petitions were rejected by an order dated 27 October 1941. It is contended on behalf of the petitioner that after the rejection of those petitions the remedy of Damodar Shukul lay by way of suit under Order 21, Rule 63, Civil P.C., and therefore he was not entitled to apply under Order 21, Rule 100, Civil P.C., after delivery of possession had been granted to the petitioner.

(2.) This application in revision came first before Rowland J., who considered that a substantial point of law was raised which should be heard by a larger Bench and, in his order dated 5 November 1943, he pointed out that the facts of this case are practically on all fours with those in Sunder Prasad Singh V/s. Deodhari Singh A.I.R. 24 1937 Pat.63 in which case it was held following Biswanath Patra v. Lingaraj Patra A.I.R. 1922 Pat. 408 that a mortgagee in possession is not entitled to object under Rule 58 of Order 21 and that an objection by him made and disallowed does not debar him from again applying under Rule 100. He further pointed oat that since the decision of that case, the terms of Rule 58 of Order 21 have been amended in exercise of the rule-making powers of this High Court and Rule 58 now applies to any claim to any property on the ground that the applicant has an interest therein which is not bound under the decree. He also referred to a certain decision to show that the fact that the claim was not fully investigated would hardly seem to be a governing factor. Before dealing with points of law which arise, I must refer to certain facts. The two petitions filed in the execution proceedings before sale by Damodar Shukul were not headed as being petitions under Order 21, Rule 58.

(3.) In one of them no particular order or rule of the Civil Procedure Code was cited and in the other reference was made to Order 21, Rule 66, Civil P.C. I do not, however, think that this will affect the decision of this case if the relief claimed in those petitions by Damodar Shukul was a relief which could be granted under Order 21, Rule 58, Civil P.C. No evidence was taken regarding the allegations made in those petitions but it appears that the pleaders of the parties were heard and in the order dated 27 October 1941 by which those petitions were rejected the Court remarked as follows: The decree under execution is a money decree. If the applicant's mortgage bond is genuine it will not be affected by the sale in execution of money decree.