JWALA PRASAD Vs. HAR PRASAD

JUDGEMENT

(1.) This is an application in revision against an order of the civil Judge of Bijnor disallowing an application for stay of execution. One Har Prasad sued Mt. Bismilla and others on foot of a mortgage (Suit No. 52 of 1929). We are informed that the mortgaged property consisted in shops and houses. A puisne mortgagee, by name Ghandi Prasad, was impleaded as a defendant to the suit. A preliminary decree was obtained on 29 May 1929 and the final decree was passed on 3 August 1931. That decree is now under execution.

(2.) The facts as stated before us are as follows : Ghandi Prasad in execution of his own decree purchased on 2 March, 1932 a portion of the mortgaged property. Another portion of it was purchased by one Abdul Wahab. These two persons thus replaced the original mortgagors. On 30 August 1932 Abdul Wahab sold his share to Ghandi Prasad and on 26 August 1935 Chandi Prasad sold the whole property to Jwala Prasad, the applicant in the present case. The 2nd September 1935 was fixed by the executing Court for sale of the property in execution of the decree of Har Prasad, but meanwhile, on 29 August 1935, i.e. three days after his own purchase of the property, the applicant presented a petition before the Collector under Section 4, U.P. Encumbered Estates Act (Local Act No. 25 of 1934). That same day the Collector wrote the following order on the application : "Forwarded to the Special Judge. Let a copy of this order be given to the applicant free of costs". On 30 August 1935 the applicant appeared before the executing Court and presented an application for stay of execution on the strength of the copy of the Collector's order with which he had been furnished. That application was dismissed for default on 10 December 1935. A second application was made on 16 December 1935, and on 8 February 1936 it was dismissed on merits. It is against that order of dismissal that the present application for revision has been made. The grounds upon which the application for stay was opposed were that the applicant was no party to the execution proceedings, that Section 52, T.P. Act, operated as a bar and that the sale deed of Chandi Prasad in favour of the applicant was "collusive and fictitious". The learned Judge finds that, ceteris paribus, the application was competent under Section 146, Civil P.C., but he dismissed the application on the ground that pendente lite transfers are not recognized by the Act. He observes: To the relief contemplated by the Encumbered Estates Act in respect of the debt and the property in question in the decree under execution, the applicant can claim such a right only if such transfers are recognized under the Encumbered Estates Act. Therefore, on a consideration of the provisions of Section 4, United Provinces Encumbered Estates Act, read with Rule No. 6 of the rules made under the said Act, it would appear that the said Act does not recognise such transfers and consequently an order passed by the Collector under Section 6 of the Act on the application of such transferee cannot affect the proceedings against his transferor started by the decree-holder.

(3.) The learned Judge was of opinion that Order 22, Rule 10, Civil P.C., was not applicable. What his finding was on the plea based on Section 52, T.P. Act, is not clear. A preliminary objection is raised that no revision lies on the ground that there has been no "case decided" within the meaning of Section 115, Civil P.C., and on the ground that no question of jurisdiction is involved. In our opinion this objection cannot prevail. The application of Jwala Prasad was an independent application by an outsider to the suit and to the execution proceedings. The proceedings which began with an application for stay by a person not a party to the suit and not originally a party to the execution proceedings and which terminated with an order of refusal, had the character of a case complete in itself. In our opinion the order which was passed upon that application was an order passed in a "case decided" within the meaning of Section 115, Civil P.C. We can find nothing in any of the reported authorities on the question of what amounts to a "case decided" which might be held to be in conflict with this view. We accordingly hold that the order of the executing Court dated 8 February 1936 was an order passed in a "case decided". As regards the question of jurisdiction, for reasons which will appear hereafter, we are of opinion that the Court below has refused to exercise jurisdiction on the basis of a rule which had no application to the facts and in any event has acted illegally and with material irregularity in the exercise of his jurisdiction. We accordingly disallow the preliminary objection.