BANSIDHAR JAGLIK Vs. SAMU SINGH

JUDGEMENT

(1.) This Rule is directed against the order of the learned Judge in the Court below rejecting an application made by the petitioner under Order 21, Rule 100. The facts have been found in favour of the petitioner by the Judge, but as regards the legal position he has come to the conclusion that the application under Order 21, Rule 100 at the instance of the petitioner does not lie. Apparently an application was previously made by the petitioner under Order 21, B. 89 which application was rejected and then he proceeded to make this application under Order 21, Rule 100.

(2.) The Judge in the Court below points out that the decree in execution of which the petitioner alleges he has been dispossessed, is a rent decree and that in those circumstances Order 21, Rule 100 does not apply. That is a doubtful question of jurisdiction, and in any event there appears to be a decision of this Court in favour of the decision on which the Judge in the Court below has relied. I refer to the decision in Panchratan Koeri V/s. Ram Sahay Singh AIR 1918 Pat 483. That was a case of a non-transferable holding and the purchaser proceeding under Order 21, Rule 100. The learned Judge deciding that case held that the holding not being transferable, the purchaser who was a representative of the judgment-debtor could object to the sale under Section 47 and Order 21, Rule 100 did not apply. In Purna Chandra V/s. Manobini Devi , the Calcutta High Court commented upon the Patna decision, but I feel very consider, able difficulty in holding, with great respect to the learned Judges of that Court, that the comment was justifiable. There have been a number of cases of this Court which appear to be against the decision reported in Panchratan Koeri V/s. Ram Sahay Singh AIR 1918 Pat 483 for instance, the case in Ramlaik Rai V/s. Rajballam Rai AIR 1933 Pat 581. But that was a case where the holding was transferable and it was held that the purchaser was not a representative of the judgment-debtor. It is rather difficult to see how it can be said that the purchaser of a non-transferable holding is not a representative of the judgment-debtor in those circumstances. I have already pointed out there was a previous application under Order 21, Rule 89. Although perhaps Section 11, Civil P. C, in terms does not strictly apply, it has been pointed out by their Lordships of the Judicial Committee of the Privy Council that the principle of res judicata is wider than that stated in that section.

(3.) On the whole I feel, especially having regard to the decision of the Divisional Bench of this Court (which decision is binding on me), that I cannot interfere in this case. In those circumstances the application is dismissed with costs.