JAGADISH BHATTACHARJEE Vs. BAMA SUNDARI DASYA

JUDGEMENT

(1.) The three plaintiffs in the present suit, the appellants before as, are the sons of one Jadu Nath Nayaratna, deceased. The suit relates to an 8 1/4 anna share of a Sikmi Taluk, Ram Nath Ukil, which share belonged to Jadunath. One of the co sharer landlords, Ishan Chandra Lahiri, brought a suit for arrears of rent in respect of his share in the superior interest against Jadu Nath and his co sharers in the Taluk. In that suit an ex parte decree was made on the 20th September 1900. Jadunath died on the 22nd March 1901. In execution of the ex parte decree the Taluk (or a portion thereof) was sold by the Court on the 9th October 1901. The purchaser was one Naba Krist Nandi, the husband of the defendant No. 1. The sale was confirmed and the sale certificate was issued on the 29th November 1901.

(2.) The plaintiffs brought the present suit to recover their father s share in the Taluk. The contention on which they now rely is that the sale of the 9th October 1901 was inoperative, because at the date of the sale, Jadu Nath was dead and his legal representatives, the plaintiffs, had not been brought on the record. In the alternative the plaintiffs assert that if anything at all passed to the auction purchaser by virtue of the sale, all that was sold was a portion of the Taluk corresponding to the decree holder s interest in the Zemindary.

(3.) As to the first contention, it is not disputed that Jadu Nath died before the date of the sale. The application for execution which led to the sale was made on the 8th July 1901. That was also after Jadu Nath s death. But it appears that there had been a previous application for execution, presented on the 21st August 1900 and followed by attachment of the property. That application was dismissed on the 7th January 1901, apparently for default of prosecution.