PARYAG SAHU Vs. BABU CHANDRACHUR DEVA

JUDGEMENT

(1.) This is a petition against an order passed by the learned Munsif of the Second Court at Begusarai in Miscellaneous Case No. 208 of 1937. The case of the petitioner was that he was a mortgagee and therefore he was not bound by the decree passed against the mortgagor, or by the proceedings arising under that decree. The decree-holder contested the suit on the ground that the application was not maintainable. The Court below held that the application was not maintainable although it came to the conclusion that the petitioner was in possession of the property at the time of the delivery of possession.

(2.) In order to understand the point arising in this case, it is necessary to give a short history of the litigation. The decree-holder filed three suits for a declaration of their title and for recovery of khas possession. We are here concerned with the suit against Sipahi Paswan and others. The trial Court dismissed that suit. In the Appellate Court Sipahi Paswan compromised the suit as will be apparent from Ex. C, which is a copy of the judgment. As a result of the decree, the decree-holder took delivery of possession. The present petitioner urges that he was in possession of the property in his own right as a mortgagee by virtue of a bond Ex. 1, which was executed by one Nandlal whose heir Sipahi is. The lower Appellate Court decided that the mortgagor had no interest in the land, and therefore a mortgagee who steps into the shoes of the mortgagor is not entitled to file an application under Order 21, Rule 100, Civil P.C.

(3.) Mr. Radha Shyam Chatterjee has contended referring to the wording of Rule 100, Order 21, Civil P.C., and to the decision in Kedar Nath Bag V/s. Saday Chandra Nandi A.I.R. (1914) Cal. 580 that a mortgagee cannot be said to be a legal representative of a tenant within the meaning of Rule 101, Order 21, Civil P.C. He has further drawn my attention to a decision of this Court in Ghanshyam Das v. Ragho Singh A.I.R. (1931) Pat. 64, where it was held that a mortgagee is not bound by the results of a litigation against the mortgagor. Mr. Lakshmi Kant Jha, appearing on behalf of the opposite party, contends that the Calcutta view has not been accepted by the Patna High Court, and he has drawn my attention to the case reported in Bhikhia Jha Birj Behari Singh A.I.R (1917) . Pat. 597, where it was held that a transferee of a non-transferable holding was a legal representative of the transferor. In that case their Lordships held that the word "judgment- debtor" occurring in Rules 100 and 101, Order 21, of the Code includes the representatives of the judgment-debtor and also all persons who are bound by the decree against the judgment-debtor and by the sale in execution of that decree; and that the purchaser of a portion of a holding is, so far as, his interest is concerned, bound by the decree for rent obtained under Section 148-A, Ben. Ten. Act, and by the sale in execution of that decree and therefore he could not apply under Rules 100 and 101, Order 21. The principle of this decision, although not specifically mentioned, has been followed in Panchratan Koeri V/s. Ram Sahay Singh A.I.R (1918). Pat. 483.