MAHARAJADHIRAJ KAMESHWAR SINGH BAHADUR Vs. BANSIDHAR MARWARI

JUDGEMENT

(1.) This is an appeal from an appellate decree affirming the decree passed by the Munsif of Darbhanga in favour of the plaintiff. It appears that on 6 April 1925 the defendant's father obtained a decree for rent in respect of a holding situated within his zamindari against one Dwarka Chaudhury and certain other persons and the holding being put up for sale in execution of the decree was purchased by the plaintiff for a sum of Rs. 1,100 on 20 March 1928. The plaintiff deposited in due time the entire purchase money and a portion of it was withdrawn by the defendant and the balance by Dwarka Chaudhury and others. As a matter of fact, at the time when the plaintiff instituted the suit, neither Dwarka Chaudhury nor any of the other defendants in the rent suit was in possession of the holding. It is now established beyond doubt that though the holding had been previously mortgaged by the recorded tenant named Ramdhani Kant, the mortgage had been redeemed long before the institution of the rent suit by the latter and he was in possession thereof since 1919. Accordingly when the plaintiff proceeded to take possession of the holding through Court, Ramdhani Kant made an application under Order 21, Rule 100, Civil P.C., complaining that he had been wrongfully dispossessed by the plaintiff. This application succeeded and the possession of the property was restored to him on 5 August 1929. The plaintiff then instituted the present suit for recovery of Rs. 1,397 as damages. His case in the plaint was that the defendant's servants who acted for him had committed a deliberate fraud on him and he was entitled to be compensated.

(2.) The case of the plaintiff has been accepted by both the Courts below and the facts which have been found by these Courts may be summarized as follows: (1) That Sri Kant having redeemed the mortgage from Dwarka Chaudhury was in possession of the holding in respect of which the rent suit has been brought by the defendants since 1919; (2) that though this fact was known to the servants of the defendants, they brought the suit not against Sri Kant but against Dwarka Chaudhury; (3) that the defendants servants had in bringing the suit acted in collusion with Dwarka Chaudhury and others and had thus defrauded the plaintiff. The Courts below have also in their judgment strongly commented upon the conduct of the defendant's amlas in not producing the zamindari papers to substantiate the defence that at the time when the rent suit was instituted the name of Dwarka Chaudhury was still recorded in the landlords papers. They held therefore that the plaintiff was entitled to recover the entire purchase money together with the interest claimed by him by way of damages.

(3.) The first point which is raised by the learned advocate appearing on behalf of the defendant-appellant in this second appeal is that in view of the provisions to be found in Order 21, Rules 91 to 93, the plaintiff's suit is not maintainable and in support of his contention he relies strongly upon the decision of this Court in Nagendra Nath Ghose V/s. Sambhu Nath Pandey AIR 1925 Pat 106. In that case it was held that a purchaser at a sale held in execution of a decree is not entitled to bring a regular suit for realization of the purchase money paid by him on the ground that the judgment-debtor has no saleable interest in the property and that where he has purchased a property in which the judgment-debtor has not a saleable interest, the proper procedure for him to adopt in order to recover the purchase money is to apply under Order 21, Rule 91, Civil P.C., to set aside the sale, and then if the sale is set aside he may apply under Rule 93 for an order for refund of the purchase money. If he does not apply under Rule 91 or his application is rejected, the sale must be confirmed, and Clause (3) of Rule 92 bars a suit to set aside the sale.