CHANDRAMONI SAHA Vs. HALIJENNESSA BIBI

JUDGEMENT

(1.) In this case it appears that one Abbas Ali owed the plaintiff certain money. He died without discharging the debt and after his death the plaintiff brought a suit against his heirs among whom was the defendant No. 4, and obtained a decree against them. In execution of that decree he put up the property now in dispute to sale, and purchased it himself. He obtained the sale certificate and formal possession but after obtaining formal possession he was again dispossessed. Thereupon he brought the present suit for recovery of possession.

(2.) A good deal of the argument in this case has been directed to the pleadings in the suit, and it is a matter of regret that the appellant has not thought fit to have these translated and laid before us. So far as we can gather the plaintiff alleged that in execution of the decree against defendant No. 4 and others, he had purchased this land which was in their possession. We are told that defendant No. 4 did not traverse that allegation and did not allege that as a matter of fact the sale had never taken place, or that if it had taken place it was invalid. On the, case coming up for trial the 4 defendant pleaded, as we understand that the land was her own, and did not descend to her from Abbas Ali, and was not liable to be taken in execution for the debts of Abbas Ali. The Munsif found that this land did belong to the 4th defendant and did not descend to her from Abbas Ali. He found, however, that defendant No. 4 never impeached the execution proceedings and did not suggest that she was not aware of these proceedings. He held, therefore, that she was not entitled to question the validity of the sale, or to dispute the plaintiff's rights as acquired by that sale. The 4 defendant then appealed to the Subordinate Judge and the Subordinate Judge considered that the defendant No. 4 had not had a proper opportunity of meeting the plaintiff's allegation of sale and purchase. He remanded the case to the Munsif in order that he should take evidence and ascertain whether the defendant No. 4 was entitled to impeach the execution proceedings by reason of the fact that she was not aware of those proceedings. He grounded this order on this decision in Sheikh Murullah V/s. Sheikh Burullah 9 C.W.N. 972. Subsequently the Munsif found that defendant No. 4 had been entirely unaware of the former proceedings and accordingly was not bound by the sale. This decision was upheld on appeal by the Subordinate Judge.

(3.) The plaintiff appeals to this Court and on his behalf three grounds have been urged. The first is that defendant No. 4 was precluded by Section 244, Civil Procedure Code, from contesting the validity of the sale. We are unable, however, to accept this contention. It was held in the case of Durga Charan Agradani V/s. Karamat Khan 7 C.W.N. 607 following two certain cases that, the defendant in a suit is not debarred by Section 244 from raising a point in defence of his title even though he could have raised it but did not raise it in former execution proceeding to which he was a party. We have been invited to dissent from this decision, but it appears now to be well settled that the defendant can in a subsequent suit take a plea which the plaintiff would be debarred from raising by the provisions of Section 244, Civil Procedure Code.