RAM LAL JHA Vs. THAKUR DAS

JUDGEMENT

(1.) The petitioner, as the holder of a mortgage of a part of a holding, deposited the amount which had been decreed against) the recorded tenant in a suit for rent at the instance of the landlord. Possession was delivered to him in accordance with the provisions of Section 171, Bihar Tenancy Act. After possession had been delivered to him, the judgment-debtor filed a petition offering to deposit the amount which had been paid by the present petitioner less the amount which the judgment, debtor claimed that the petitioner should have paid as his share of the rent and less the price of crops which the judgment. debtor alleged the petitioner had reaped while in possession. The Court below, on this application, directed the judgment debtor to be put back into possession on payment of the decrials amount less the amount claimed as the present petitioner's share of the rent and less the price of the crops which the court assessed at Rs. 3 per bigha. It may be observed that the court. Arrived at this figure without any evidence. Whatsoever. Indeed it was expressly stated in the judgment that there was no evidence on the record to show what the actual produce of the land was. In these cireumstances it was wholly wrong for the court to fix arbitrarily the rate of Rs. 3 per bigha as the price of the crop. That however is not a matte of very great importance in this case which raises more important issues.

(2.) It is abjected by the petitioner that after possession had been delivered to the petitioner had been delivered to the petitioner the court was functus officio and had no jurisdiction to entertain an application by the judgment debtor to be put back into possession. It is contended that Section 171 creates a statutory mortgage in favour of the encumbrancer who makes only way in which the mortgagee can be compelled to give up possession is in execution of a decree obtained against him in a regular suit on the mortgage.

(3.) With the assistance of the learned advocates of both sides I have examined the cases on this question and find that there is no reported instance of a judgment-debtor who has been dispossessed under Section 171 having been put back into prosecution on an application made to the court. Whether the court has jurisdiction to entertain such and application is one about which therefore considerable doubt must be entertained. But the petitioner must in my opinion succeed on another ground.