Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Gnanada Sundari Mojumdar vs Chandra Kumar De on 30 March, 1926
Equivalent citations: AIR 1927 Cal 285
Author: Greaves


Greaves, J.

1. This is an appeal by the judgment-debtor against a decision of the Subordinate Judge of Noakhali reversing the order of the 1st Munsif of Lakhipur.

Facts. – The Opposite Party No. 1 held an under-raiyati under the appellant. In execution of a decree in ejectment the appellant obtained khas possession of the under-raiyati against the Opposite Party No. 1. The superior landlords subsequently obtained a rent decree against the appellant and in execution thereof the holding was brought to sale and purchased by the Opposite Party No. 3. The Opposite Party No. 1 obtained settlement of the land from the auction-purchaser at the execution sale, the Opposite Party No. 3.

After this the judgment-debtor applied to set aside the sale by the landlord in execution of the rent decree. This was contested by the auction-purchaser, but a compromise was arrived at and the sale was set aside. Thereupon the appellant applied for restoration of possession against the Opposite Party No. 1 who held the under-raiyati. The Munsif said that he had no jurisdiction to. deal with the matter under the provisions of Section 144, Civil P.C. but that as he considered the applicant was entitled to be restored to the position in which he would have been if the execution sale had never taken place, he passed an; order under Section 151, Civil P.C., for possession against the Opposite Party No. 1 who had been settled on the land after the purchase by the Opposite Party No. 3. Possession under this, order was given to the appellant and he is now in possession. Thereafter an appeal was preferred; by the Opposite Party No. 1 against the decision of the Munsif, and the Subordinate Judge re-versed the order of the Munsif for reasons which he has indicated in his judgment. As a result this appeal has been preferred to this Court.

2. Two points have been urged before us on behalf of the appellant. but, it is said that as the Munsif acted not under Section 144, Civil P.C. but under his inherent jurisdiction under Section 151, Civil P.C. no appeal lay to the Subordinate Judge and that in the result the judgment of the Munsif should be restored; secondly, it was said that on the merits, by virtue of the provisions of Order 21, Rule 92, the appellant was entitled as against the Opposite Party No. 1 to the order which the Munsif had made. If was urged that he was entitled when but auction-sale was set aside to be placed in exactly the same position as he would have been if the sale had never taken place and that consequently he was not merely entitled to have the sale set aside as against the Opposite Party No. 3, but to have an order for possession of the land against the Opposite Party No. 1 who had been settled on the land by the Opposite Party No. 3 after the Opposite Party No. 3 had purchased at the sale in execution of the rent decree.

3. So far as the first point is concerned, namely that there was no appeal, we were referred to the decision of the Patna High Court in Sukhdeo Dass v. Kito Singh [1917] 1 Pat.L.W. 551. In that case it was held that as the order of the executing Court must have been made under Section 151, Civil P.C., and that as Order 43, Rule 1, does not provide for an appeal against such an order, the lower appellate Court had no jurisdiction to set aside the order of the first Court; that is to say, it was held that there was no appeal to the Subordinate Judge from an order made by the Munsif under the provisions of Section 151, Civil P.C. There is another case of Jagdip Narain Singh v. F.H. Holloway [1917] 2 Pat.L.J. 203; the point was not actually decided there, but one of the learned Judges who formed the Division Bench expressed an opinion, which no doubt is obiter, that an appeal did lie, as it was an adjudication between the parties and not an order against which an appeal lies as an appeal from an order.

4. There does not seem to be any direct authority in this Court dealing with the actual point, but the learned vakil who appears for the respondents says that in many cas9S an appeal has been entertained against an order passed under Section 151, and he refers us in support of this contention to a decision of the Judicial Committee : Jai Barham v. Kedar Nath Marwari A.I.R. 1922 P.C. 269. But I do not think that that case really covers the point which we have to decide. But I am inclined to think that an appeal does lie. It certainly seems a curious position that if the Court deals with the matter under Section 144, Civil P.C. an appeal lies whereas if the Court under Section 151 exercises the same jurisdiction which Section 144 gives him, but exercises that jurisdiction tinder Section 151 because Section 144 is not strictly applicable, no appeal lies; and the view I take ns that if as hero the order is made under the provisions of Section 151, but in fact in exercise, by analogy, of the jurisdiction under Section 144 an appeal does lie. The first point therefore accordingly fails.

5. So far as the second point is concerned I think that the Subordinate Judge was right. I do not see how the Opposite Party No. 1 can be brought into the execution proceedings and an order such as is sought against him be pissed in those proceedings. It seems to ma that the remedy of the appellant does not lie in this direction. He can either recognize the Opposite Party No. 1 as tenant on the land and take rent from him, or recognizing him as a tenant he can terminate his tenancy by notice, and if possession is not given sue for ejectment, or he can treat him as a parson who, under the facts and circumstances of this case, is no batter than a trespasser, and has no right whatever on the land, and sue in ejectment to recover possession of the land. It seems to ma that one or other of these courses is the proper course for the appellant to adopt and that ha cannot get the order which he seeks as against the Opposite Party No. 1 in the execution proceedings to which the Opposite Party, No. 1 is not a party.

6. We are pressed with the fact that the present appellant is in possession and it is said that it would be therefore inequitable to mike any order which might have the effect of disturbing that possession. Bat I do not think that that fact can influence us. If the appellant is wrong in his contention then the order of the Subordinate Judge was correct and we are bound to say so whatever the consequence may be.

7. In the result therefore the appeal fails and it is dismissed with costs, the hearing-fee is assessed at one gold mohur.

8. The connected application is rejected.

Mukerji, J.

9. I agree.

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