BRAJABALA DEVI Vs. GURUDAS MUNDLE

JUDGEMENT

(1.) This is a Rule obtained by a decree-holder auction-purchaser, calling upon the judgment- debtor and another person, both claimants under Section 335 of the Civil Procedure Code, to shew cause why an order made by the Munsiff of Uluberia under that section should not be set aside. The facts, which have given rise to these proceedings, are practically undisputed. The present petitioner Rrajabala obtained an ex-parte decree for rent against Gurudas Mundle, on the allegation that she was the landlord of an agricultural holding in the possession of the latter. Gurudas made an application to have the ex-parte decree set aside, but was unsuccessful. The decree-holder then took out execution, the property was sold and purchased by herself. She then obtained delivery of possession, with the result that the judgment debtor Gurudas was ousted from the holding. An application was thereupon made under Section 335 of the Civil Procedure Code, to the Court, which had delivered possession to the decree-holder, auction-purchaser, by the judgment-debtor Guiudas and another person, Behari Lal Roy Chowdhry, who claimed to be the landlord of the holding in the occupation of Gurudas and alleged that he had been in possession of it by receipt of rent from the latter. The application was resisted by the purchaser on the ground that it was not maintainable under Section 335 of the Civil Procedure Code. The learned Munsiff overruled this objection, and holding upon the evidence that the second claimant held as tenant under the first claimant, ordered that the applicants do recover possession of the land claimed. The auction-purchaser thereupon moved this Court and obtained the Rule now under consideration.

(2.) In support of the Rule it is argued, first, that so far as the judgment-debtor was concerned, it was not competent to him to make an application under Section 335 of the Civil Procedure Code, Secondly, that so far as the first claimant was concerned, as he claimed to have been only in constructive possession, he could not be said to have been dispossessed within the meaning of Section 335 of the Civil Procedure Code and was consequently not competent to maintain an application under that section, and thirdly, that in any event, an order could not be made in favour of the first claimant as he could not be restored to possession in the manner previously enjoyed by him, without restoring the judgment-debtor himself to possession, which was obviously not contemplated by the law.

(3.) In our opinion, the first and third grounds must prevail, but the second must be overruled.