BADRUL HASSAN ANDE ORS Vs. BIBI HAKEEMUNNISSA

JUDGEMENT

(1.) This rule is directed against the order of the Munsif dated 5 April 1938, allowing an application under Order 21, Rule 100, Civil P.C. The applicant was purchaser of a part of a holding and, having regard to the decision of the Privy Council we must hold that it was a holding which was transferable by reason of the retrospective nature of the Bihar Tenancy Act, the holding was transferred in 1920. Quite apart from the question whether any point of jurisdiction arises, it is much too late in the day to contend that the decisions of this Court to the effect, that a purchaser of a non-transferable holding or a portion thereof is a representative of the judgment-debtor but a purchaser of a transferable holding is not a representative of the judgment-debtor, are wrong.

(2.) Therefore having regard to the decision of the Judicial Committee, it must be taken as law that the applicant in this case was not a representative of the judgment-debtor and therefore prima facie had a right to apply under Order 21, Rule 100. The question to some extent was gone into by a decision to which I was a party: Thakur Rai V/s. Issardayal Pershad A.I.R (1938) . Pat. 559. Mr. Janak Kishore on behalf of the petitioner frankly admits that that decision is one which he cannot distinguish so far as the law is applicable in this case. He contends however that the only right the applicant had was to be put into possession or to resist the possession of the landlord under Order 21 Rule 100, but to pay off the judgment-debtor under Sec. 74, Bihar Tenancy Act.

(3.) On the plain provisions of that Section however, it is clear to me that the Section does not apply. That being so and having regard to the decision of this Court that the purchaser of a transferable holding is not the representative of the judgment-debtor, it is impossible for us to hold in this revisional application that the learned Judge had no jurisdiction to entertain the application under Order 21, Rule 100. For those reasons I would discharge the rule with costs; hearing fee one gold mohur. Agarwala J. I agree.