BADRIDAS LALCHAND MAHEBANI Vs. RAJA PRATAPGIR NARSINGIRJI

JUDGEMENT

(1.) THE litigation out of which this appeal arises has had a chequered career. The suit is for possession and mesne profits of and in respect of a theatre known as Tarachand Theatre, situate at Khandwa in the Nimar district of this province. De-fendants 2 and 3 are in possession and they are the appellants here. The facts are as follows: One Shamji Hemraj sued defendant 1 Taraehand in the Bombay High Court and obtained a consent decree for Rs. 7000 and at the same time was given by consent a charge On the Taraehand Theatre. The date for payment was fixed as 15th November 1929 and the decree provided that on failure to pay on that date, the property charged would be sold under the direction of the Bombay High Court. This decree is dated 23rd August 1929 and was obtained in Civil Suit No. 437 of 1929. A copy of it has been filed here as Ex. P-8. This Taraehand, defendant 1, was considerably indebted and several suits and decrees were pending against him in the Courts of this province about this time. One of these suits was Civil Suit No. 18 of 1930 filed in the Court of the Subordinate Judge, First Class, Khandwa, by one Rai Bahadur Govind Rao Mandloi. He attached the theatre in dispute on 20th February 1930 and later obtained a simple money decree The property was then brought to sale in execution and purchased by defendant 2 on 5th January 1931. The sale was confirmed on 22nd July 1933. This defendant later sold a 14 annas share in the theatre so purchased to defendant 3 on 28th April 1934 and the two are now between them in possession. Other decrees were also outstanding against defendant 1 and rateable distribution had been ordered in respect of the proceeds of the sale, but we are not concerned with those facts here except indirectly. Their only relevancy in this suit is as evidence in support of the appellants' plea of collusion and fraud between defend-, ant 1 and his decree-holder Shamji Hemraj in Bombay.

(2.) IN between these dates, that is to say, on 31st March 1931, just after the auction-sale in which defendant 2 purchased but before its confirmation, the plaintiff purchased the same property in execution of the consent decree obtained by him in the Bombay High Court. This sale was held in Bombay by the Sheriff of that city though the property was situate at Khandwa. Thereupon the plaintiff filed an objection under Order 21, Rule 58, Civil P.C., in the sale proceedings then pending in execution of Govindrao Mandloi's decree, in the Khandwa Court. This objection was registered as M.C. 70 of 1932 and was decided against the plaintiff on 23rd June 1934. Having, failed in the objection proceedings, the plaintiff instituted the present suit out of which this appeal arises. The plaint was filed on 12th July 1934. The contesting defendants (the appellants here) raised a. number of pleas, among them one of collusion, but according to their learned Counsel in this Court they did not bother much about those pleas and did not trouble to adduce the necessary evidence because they had a cast iron defence against which the plaintiff could not possibly succeed. It so happened that the Court of the Judicial Commissioner in Nagpur had frequently been called upon to decide questions about. the jurisdiction of the Bombay High Court to proceed in the way it did in the Bombay suit referred to above against property situate in this Province. The decisions were not uniform and so the matter was twice referred to a Full Bench of that Court. On both occasions the learned Judicial Com. missioners held that the action of the Bombay High Court was without jurisdiction and so ultra vires. The first of these decisions is to be found reported in Gangaram Tekchand v. Dharamsi Jetha Co. (1935) 22 AIR Nag 250 and the second in Murlidhar v. Gorakhram Sadhuram (1936) 23 AIR Nag 1. In the face of those decisions the appellants' learned Counsel says it would have been a waste of time and energy to raise complicated defences on the merits which would have taken months to try. The appellants therefore contented them, selves with indicating vaguely that they also-had a defence on the merits but concentrated their real attack on this matter of jurisdiction. But however that may be, with these decisions in their favour, the appellants succeeded in the lower Court as of' course they were bound to do.

(3.) THIS Act was passed on 26th April 1936, that is to say, a month after the plaintiff's suit had been dismissed here, but it was made retrospective so as to cover all proceedings pending on 26th August 1935. The plaintiff thereupon started in to reap the benefit of its provisions. He applied for restoration of the suit to file and his prayer was granted on 28th July 1936, the defendants consenting. But having consented to the restoration they applied at a later date to the Court to review its order and when this application was refused, they came up to this Court in revision and prayed that the order of the lower Court refusing to review its order of 28th July 1936 be set aside. The application for revision failed and was dismissed on 10th December 1936. Thereupon the contesting defendants filed an application in the first Court dated 19th January 1937 asking for leave to amend their pleadings. This was refused and the parties having no further evidence to offer, the Court, after hearing arguments, proceeded to judgment. This time the plaintiff's claim was decreed and the present appeal is against that decision.