RAMJANAM SINGH Vs. RAMPHAL LAL

JUDGEMENT

(1.) IN this case there was a competition between two purchasers, defendant 2 on the one hand, who purchased the property on a money decree dated 6 April 1932, and the plaintiff-respondent on the other who purchased the property in execution of what has been described in the Court below as a money decree dated 8 August of the same year. IN my judgment there is nothing in the point that a charge was created by the kabuliyat, and I have the gravest doubt whether a charge could be so created. The real question is whether in the circumstances the sale arising out of the later execution of August 1932 was in fact the execution of a money decree. The learned Judge in the Court below has come to the conclusion that it was a rent decree, because (but?) in the circumstances of the case it was not necessary to comply with the provisions of Section 158-B (163?) and a simultaneous issue of the sale proclamation and the order of attachment was in his opinion unnecessary. That view in my judgment is incorrect. There is a certain method of procedure to be adopted as laid down by what is now the Bihar Tenancy Act, for the purpose of executing a rent decree as such, and I know of no authority which would entitle the parties to depart from the procedure so laid down. That it is necessary for the parties to comply with the procedure so laid down is of course obvious, as the effect of a sale under the Bengal Tenancy Act and a sale under the Civil Procedure Code are two very different things as pointed out in Doolar Chand Sahoo V/s. Chhabeel Chand (1878) 6 IA 47.

(2.) THE facts of that case are not unlike the present one although perhaps somewhat more complicated. I very much doubt in the first place whether this property was governed by the Bengal Tenancy Act, although the learned Judge in the Court below has held that it was, but I do not decide the question on that footing. After a perusal of the trial Court's judgment for the purpose of ascertaining what the facts were and for the reason that I am of the opinion that the learned Judge was wrong in coming to the conclusion that it was not necessary to comply strictly with Section 163, I hold that the view that the Judge held was wrong in law. In those circumstances in my opinion the judgment of the learned Judge in the Court below should be set aside, the judgment of the trial Court reversed and the plaintiff's suit dismissed with costs throughout. Lest there should be any misunderstanding as regards the Rupees 100, which the Court below has allowed to the plaintiff, I observe that the plaintiff had no cause of action against defendant 2 and in any event should not have recovered the amount from him even if he had succeeded in the suit. So far as defendant 1 is concerned, he has been brought to this Court by the appellant (defendant 2). No relief was sought or could be got against him. THE appellant therefore, although recovering his costs from the plaintiff-respondent, must pay the costs of this appeal incurred by defendant 1.