SHEIKH JOHAN BUKSH Vs. SHEIKH MOHAMMAD TASLIM

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff. The facts of the case are these. The plaintiff in the suit had a small share in a certain mauza, which was sold in execution of a decree against him and was purchased by defendant No. 2 on the 3rd June 1893. On the 17th August 1904 the defendant No. 2 sold the share to defendant No. 1. The present suit was instituted by the plaintiff for confirmation of his possession with regard to that share on the allegation that the defendant No. 2, although a certified purchaser, was merely a benamidar for him, the plaintiff, and that the transaction of sale between the defendant No. 2 and defendant No. 1 was a fraudulent and colourable transaction.

(2.) The first Court without going into evidence dismissed the suit on the ground that Section 66 of the present Civil Procedure Code was a bar to the maintainability of the suit. The plaintiff appealed to the Subordinate Judge of Muzafferpore, who dismissed the appeal holding that Section 317 of the old Code, and not Section 66 of the present Code; applied to the incidents of the sale, the sale having taken place at a time when the old Procedure Code was in force, and that the suit was not maintainable even under Section 317 of the old Code. Hence the present appeal.

(3.) The grounds taken are, first, that though the suit was instituted at a time when the present Code was in force, the right to sue vested in the plaintiff before the passing of the new Code and could not be interfered with by the new Code; and secondly, that although there was a sale of the share in question in execution of a decree, the plaintiff notwithstanding the sale remained all along in possession.