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Baij Nath Prasad Vs. Khedu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1933All959; 147Ind.Cas.1002
AppellantBaij Nath Prasad
Respondent
Judgment:
ORDER

Mukerji, Ag. C.J.

1. A preliminary objection is taken that neither the revisions nor the: second appeals are competent.

2. The facts on which the preliminary objections are based are simple and short. It appears that Khedu Ram was the judgment debtor in execution of a simple money decree. In execution of the decree two items of his property were sold, one was purchased, by Baij Nath Prasad, the applicant in Civil Revision No. 276 of 1932, and appellant in E. S. A., No. 1312 of 1931. The other item of property was purchased by Lachhmi Prasad who is the applicant in Revision No. 277 of 1932 and appellant in E.S.A., No. 1313 of 1931.

3. When the auction purchasers applied for delivery of possession of the properties purchased by them they were resisted by the judgment-debtors on the allegation that they were in possession not on their own behalf but under two persons, Gauri Shanker and Hira Lal, who were mortgagees of the property. The learned Munsif found that this was so and disallowed the application of the auction purchasers for delivery of physical possession. He, however, allowed symbolical possession.

4. The auction purchasers in their petition for revision contend that the mortgage was executed during the pendency of the attachment and therefore the mortgage is not valid in law. Assuming that it is so, the question is, should this Court entertain a revision. If the revision is allowed the result would be that the validity or otherwise of the mortgage would be determined in the absence of Gauri Shanker and Hira Lal who are not parties before this Court and who were not parties even before the Munsif. The applicants have their remedy by suits as mentioned in Rule 103 of Order 21 of the Civil P.C. The adjudication that went against the auction purchaser's was an adjudication under Rule 98, Order 21, Civil P.C. The applicants not being judgment-debtors have undoubtedly a right of suit. This disposes of the revisions. They are incompetent and I dismiss them with costs.

5. As regards the second appeals it appears that the applicants filed appeals before the District Judge. The Subordinate Judge who heard the appeals was of opinion that the appeals were not maintainable because no appeal lay, the remedy being by a suit. The opinion of the Subordinate Judge was correct and I accordingly dismiss both the appeals with costs.


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