RAJENDRA KISHORE PAL CHAUDHURY Vs. ASIRULLA

JUDGEMENT

(1.) This rule was directed against an order passed under Order 21, Rule 100, Civil P.C., by the learned Munsif, Second Court, Hahigunj in the District of Sylhet on 25 August 1936. The petitioner in this Court as decree holder in a suit for ejectment for non-payment of rent, obtained delivery of possession of lands appertaining to a tenancy on 24 December 1935 and the application under Order 21, Rule 100, Civil P.C, giving rise to this case was made by the opposite party in this rule on the ground of his dispossession on 24 March 1936, by the petitioner. The usufructuary mortgage on the footing of which the opposite party claimed to be in possession has been found to be a genuine transaction and the question was whether the Court below acted erroneously in the exercise of its jurisdiction in entertaining the application under Order 21, Rule 100, Civil P C., after the proceedings in execution in which the decree, holder obtained delivery of possession had terminated on 18 January 1936, the execution case having been disposed of on that date.

(2.) The contention urged in support of this rule that the Munsif in the Court below ought to have held that the dispossession not having occurred in the course of execution the application under O.21, R 100, Civil P.C., was not maintainable does not appear to me to be sound. What was contemplated by the provision of the law referred to above was that in the case of dispossession by a decree holder of a person in possession, other than the judgment debtor, the person dispossessed had his remedy as provided by Order 21, Rule 101, Civil P.C., when the Court was satisfied that the applicant was in possession on his own account. The question was whether dispossession was by a decree-holder or auction-purchaser as such, and not whether the dispossession actually took place after disposal of any execution case started at the instance of the decree-holder or auction purchaser. Judging from this standpoint, the decision of the Court below must be taken to be right on the findings on evidence arrived at by it. The rule must be discharged on this ground.

(3.) In the next place, I am satisfied that this Court should not interfere in a case of the present description even if it were held that the decision against which this rule was directed was erroneous, seeing that there was a more comprehensive remedy open to the petitioner to establish his title to the property in question as against the person in whose favour an order has been made in a proceeding of a summary nature arising out of execution of a decree. The rule is discharged. There is no order as to costs in this rule.