SHEOLAL RAMLALJI Vs. BALKRISHNA NANAKRAMJI

JUDGEMENT

(1.) THIS is a second appeal by an unsuccessful plaintiff for possession of a field. The facts are undisputed and are as follows. One Tulsiram was the absolute occupancy tenant of the field in suit. In 1926 he mortgaged it along with other property to Balkrishna. When the Debt Conciliation Board was set up Tulsiram applied to his local Board, and the debt under this mortgage was settled and made payable by annual instalments. Tulsiram, however, fell in arrears with his payments and Balkrishna obtained an order under Section 13, Debt Conciliation Act, and brought the field to sale. At the auction he himself purchased the field on 19th December 1938 and was put in possession on 12th May 1940.

(2.) IN the year 1937 the plaintiff Seth Sheolal, who is the landlord, brought a suit against Tulsiram for arrears of rent of this field and obtained a decree on 9th December 1987. Under the provisions of Section 9, Tenancy Act, it was not necessary for him to bring a suit to enforce his charge and a C form was sent to the Collector on 7th December 1938 and in due course the field was put up to auction on 24th March 1940 and purchased by the plaintiff himself. The sale was confirmed on 1st June 1940 but when he sought to obtain possession he was naturally resisted by Balkrishna who had already been put in possession. The plaintiff applied to the Collector for a warrant of possession and Balkrishna objected to this in the Collector's Court and offered to pay the decretal amount which the plaintiff refused to accept. The Collector then passed an order on 11th February 1941 declining to put Seth Sheolal in possession and stated that he might accept the amount due on his rental decree which Balkrishna was going to pay or else he might prefer a suit in the Civil Court. Against this order Seth Sheolal appealed to the Deputy Commissioner. His appeal was rejected and the suit now under consideration was then filed.

(3.) THE doctrine of lis pendens does apply to involuntary as well as voluntary sales, and the lower appellate Court corrected the trial Court which held that it did not. The lower appellate Court then went on to point out that nevertheless Section 52, T.P. Act, could not help the plaintiff appellant as that section applies only when any right to immovable property is directly and specifically in question. I agree with the learned District Judge that a suit for the recovery of arrears of rent, which is what the plaintiff's suit was, is not one in which any right to immovable property is in question. The execution proceedings were in fact nothing more than an execution of a simple money decree. The doctrine of lis pendens therefore cannot apply. Even if it were held to apply it might be mentioned that the plaintiff's own sale took place during the pendency of the proceedings in which the defendant Balkrishna was pursuing his remedy, and the doctrine would have recoiled on the plaintiff himself.