BABU GOPAL BUX RAI Vs. SHRIMATI MANKALI DEVI

JUDGEMENT

(1.) This is an application for the revision of a decision by the Deputy Magistrate, Subordinate Judge of Palamau, in an execution case. The petitioner Babu Gopal Bux Rai sued certain persons on March 8, 1924, to recover possession of an estate. While this suit was pending, the predecessor-in-interest of the opposite party brought a suit against the person at that time in possession of the estate to recover the price of certain motor fuel supplied. He obtained a money decree, and in execution of that decree, he put up some of the property consisting of a village in the estate for sale and he bought the village at the sale, the sale taking place in the year 1933. The suit by the applicant for recovery of the estate itself went through various vicissitudes and ultimately the plaintiff was successful and obtained a decree for Poisson of the estate. When he attempted to take delivery of possession he found the opposite party in possession of the village which had been purchased in execution of the money decree and it is said on behalf of the opposite party that as a matter of fact the sale took place in execution proceedings to which the applicant was made a party and that, therefore, he is bound by the execution sale. The applicant then applied under Order XXI, Rule 35, for the process of the Court to oust, the opposite party from possession and the opposite party put in an objection to delivery of possession on the ground that she was bona fide in possession.

(2.) It is contended on behalf of Gopal Bux Rai that the opposite party who has already obtained possession of the village was bound by the judgment ultimately obtained by him for possession of the village on the analogy of the doctrine of his pendent. On the other hand, the point taken by the opposite party is that she is a person bona fide in possession on her own account and that as the question of title cannot be decided in execution proceedings, he, the applicant, should bring a suit. It is very clear that both sides have a bona fide claim to the property in question and that the opposite party is in possession. Therefore, Gopal Bux Rai the applicant has no course but to bring a suit for the possession of the property when the question of title and the question of priority of his decree and the opposite party's title by reason of her purchase in execution sale may be properly adjudicated upon.

(3.) The executing Court has merely to deal with the question of bona fide possession, and the legal merits of the title must be left to a subsequent suit. For this reason, the application in civil revision must fail, the decision of the Subordinate Judge being right. It is dismissed with costs which we assess at two gold mohurs.