RATANDEO NARAYAN Vs. JAMUNA PRASAD TEWARY

JUDGEMENT

(1.) This is an appeal by defendant No. 2. The dispute relates to a holding which was purchased by the appellant in execution of a decree obtained in 1928 by I he landlord (defendant No. 1) in a suit for arrears and enhancement of rent against her recorded tenants, the defendants third party. The plaintiff had previously (in October, 1923), purchased the same holding, in execution of a money decree, and obtained possession through a Court dakhal-dehani in October, 1924. His case was that the rent decree and sale were "fraudulent, illegal, null and void," and he prayed that the decree and sale be set aside. Both the lower Courts held that the case of fraud failed entirely. They found, however, that there were various irregularities in connection with the rent decree impugned, and they came to the conclusion that the decree obtained by defendant No. 1 was valid and effective against one of the tenants only, named Ramkhelawan, and that it could not therefore, be a rent decree and could not affect the title of the plaintiff who had purchased in proceedings which did not include Ramkhelawan.

(2.) It has been urged for the appellant that the Counsel had no jurisdiction to sit in judgment in the way they have done on the Munsif who had passed the decree in the rent suit brought by defendant No. 1. Nor has Mr. Mitter, who appears for the plaintiff, respondent, gone so far as to contend that such a jurisdiction exists. The position would of course have been different if any fraud had been established. What Mr. Mitter has, therefore, done is, first to take up one of the irregularities found by the lower Courts and to urge that this irregularity was sufficient to reduce what purports to be a rent decree to a money decree. This irregularity relates to the fact that Jamuna, one of the defendants in the rent suit, had been dead for some time before the process-server reported that he had actually met that defendant. Mr. Mitter argues rightly enough that a decree in a suit for arrears of rent will not operate as a rent decree, if the tenants are not all impleaded in the suit and he contends that in the suit under discussion the same result is brought about by the fact that the heirs of the deceased defendant were not brought on the record. The point was discussed in detail by the trial Court, which came to the conclusion that the heirs of Jamuna were on record as parties both in the rent suit and the execution proceedings. The learned Subordinate Judge, therefore, held that "the want of formal substitution, if any, may be merely an irregularity but not a material one". He was plainly right and it is equally plain that the decree of 1928, cannot be treated as a money decree on this ground: the point was so clear that it is not so much as suggested in the judgment under appeal.

(3.) Mr. Mitter next referred to the circumstances in which the lower Courts have come to the conclusion that the decree was valid and effective against Ramkaelawan only, and urged that on the findings of fact in this connection the lower Courts should Cave held that fraud was established in the case. But it is not pretended that those circumstances lead to such an irresistible inference of fraud as to entitle us in second appeal to say that the lower Courts erred in law in declining to infer fraud. And apart from fraud, Mr. Mitter is unable to suggest what authority the lower Courts and to examine the proceedings in the rent suit and determine in effect what decree ought to have been passed by the Munsif on the materials before him in that suit. To the question what decree it was that the Munsif actually passed and executed, the answer is clear a rent decree it may be that the materials before him did not altogether warrant that decree; but if so, the remedy of the aggrieved parties to the suit was an appeal, The plaintiff was no party to that suit, and that remedy was not open to him. He could have nullified the decree by establishing fraud but was failed in the attempt to do so. The rent decree is not before us in appeal, and it seems idle to ask us to void not that the decree is a nullity on account of fraud but that the Munsif ought to have passed a decree against Ram khelawan only because there appear to have been some irregularities in the proceedings before him. He had a properly constituted rent suit before him and had jurisdiction to deal with that suit. If he acted irregularly in the exercise of that jurisdiction, the decree he passed cannot be now varied or modified on that ground.