HAJI DIWAN SUJAT ALI KHAN Vs. BHAO SINGH

JUDGEMENT

(1.) THE decree-holder, Haji Diwan Sujat Ali Khan, a ward of the Court of Wards, Seoni, applies for revision of an order, dated 15th January 1927, passed by the Subordinate Judge, second class, Seoni, in miscellaneous case No. 52 of 1926. The decree-holder-applicant obtained, on 30th July 1923, a decree against the judgment-debtor, non-applicant 1, Bhao Singh, in respect of land revenue due by the latter to the former in respect of mauza Khursipar. The applicant is superior proprietor and the judgment-debtor, Bhao Singh, is inferior proprietor of the said village. The decree in question was a simple money one, and in execution thereof the decree-holder attached a 10 anna 8 pie share held by Bhao Singh in the village. The non-applicants 2 to 4, Sath Lakhmichand, Seth Kesrichand and Seth Tara Chand, filed an objection to the attachment on the ground that they had purchased the share at an auction sale held in respect of another decree. The decree-holder applicant alleged that the share was attached from the possession of the judgment-debtor Bhao Singh that the decree was in respect of the land revenue of the village, and that as such the decretal amount was a species of charge under Section 122, Land Revenue Act, 1917. The Subordinate Judge found that as the auction purchase in favour of the non-applicants 2 to 4 had been confirmed by this Court on 21st October 1924, the objectors were the owners of the share in question. He also held that the decree obtained by the present applicant was a simple money one and did not specifically bind the village share in question. He further was of opinion that, although the objectors had not got the actual possession of the village share before the attachment the title had, in reality, passed to the auction-purchasers 2 to 4 and that the judgment-debtor must, in the circumstances, be held to have been in possession of the property as if in trust on behalf of the non-applicants 2 to 4, Holding, thus, that these 'non-applicants were impliedly in possession at the time of the attachment, he, therefore, released the village share on their objection. Against this order, the present applicant has now filed the present petition for revision.

(2.) ON the petition for revision coming on for hearing, the pleader for the non-applicants 2 to 4 raised a preliminary objection to the effect that, having regard to the provision contained in Order 21, Rule 63, Civil P.C., no application for revision lay and that the present applicant's remedy was by way of a regular suit as laid down in the said rule. In support of this position, the decision in Phomon Singh v. A.J. Wells A.I.R. 1923 Rang 195 was quoted. That decision is, in reality, authority for precisely the opposite view to that advanced on behalf of the non-applicants. As Duckworth, J., pointed out therein, the word "conclusive" in Rule 63 is, in reality, equivalent to "unappealable" and does not preclude revision in the case of an order under Rule 60 or Rule 61, where the Court concerned has failed to exercise a jurisdiction vested in it and has exercised a jurisdiction not vested in it or has otherwise acted illegally or with material irregularity. I do not think, therefore, that the present application for revision was barred and it only remains to decide whether there are sufficient grounds for interference having regard to the language of Section 115, Civil P.C.

(3.) I pass, therefore, to the much more important point which has been put forward on behalf of the applicant. That point is that, on the date on which the attachment was made, the judgment-debtor was admittedly in possession. It has been urged in this connexion that what the lower Court wrongly did was, in reality, to go into the question of title and to hold that, in reality, the judgment-debtor was holding on behalf of the auction-purchasers. If; has been frequently pointed out that in an enquiry under the provision we are concerned with it is the duty of the Court to determine the question of possession merely and not to go into the further question of title, so long as it is clear that the judgment-debtor is holding on his own behalf; of Monmohiney Dassee v. Radha Kristo Dass [1902] 29 Cal. 543 and Najimunnessa Bibi v. Nacharuddin Sardar .