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Sobha Ram and anr. Vs. Ram Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in78Ind.Cas.373
AppellantSobha Ram and anr.
RespondentRam Prasad
Excerpt:
takavi advanoe - attachment and sale of debt due to tenant--suit to recover debt--plea of payment, whether can be taken. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - but it clearly appears that the lower court has gone astray......of an objection to the attachment of a property by a third party under order xxi, rule 58 of the code of civil proceedure. in such a case, unless the unsucessful objector brings suit to obtain a declaration of his title within a period of one year, the decision of the court executing the decree is taken to be conclusive. an authority for this proposition will be found in the case of maharaja of benares v. patraj kunwar a.w.n. (1905) 277 : 28 a. 262. further, the court which was selling the debt was not a court constituted under the civil proceedure code and was not authorised to exercise the powers laid down in order xxi of the civil procedure code. the law on the point lays down that the loans advanced are to be realised as if they were arears of revenue, vide act xii of 1884, section.....
Judgment:

Mukerji, J.

1. This is a simple matter. But it clearly appears that the lower Court has gone astray. Certain tenants borrowed money from the Government as takavi. This was sought to be realised by attachment of the rent said to have been payable to the borrowers by their sub-tenants, the present appeallants. The appellants protested that they had paid up nothing was due by them. Their application containing this protest was dismissed for default. Then the debt, namely, the rent suposed to be payable, was put to auction-sale and was purchased by the respondednt Ram Prasad. Ram Prasad then brought this suit, out of which this appeal has arisen, in the Revenue Court for recovery of a sum of a Rs. 200, rent and interest. The appellants who are the principal defendants in the case (the sub-tenants) contended inter alia that they had really paid up and the auction-purchaser purchashed nothing.

2. The Court of first instance disbeliveved this story and decreed the suit. There was an appeal lodged before the learned District Judge. He sustained the plea of payment; but he thought, it is difficult to see really what he thought, the judgment is entirely unintelligible. I called upon the leaned Counsel for the respondent Ram Prasad to sustain the decree of the lower Court on any ground he thought fit to do so. The decree is really unsupportable. It appears to me that what was sold was a debt supposed to be due. There was no guarantee at the time of the sale either by the Government or by anybody else that the debt was really owing. The fact that the alleged debtor's protestation was not heard owing to their own default makes no difference. Even if the Court had held that their plea of payment had not been establlished it could not be said that finding would operate as res judicata. It is not the case of an objection to the attachment of a property by a third party under Order XXI, Rule 58 of the Code of Civil Proceedure. In such a case, unless the unsucessful objector brings suit to obtain a declaration of his title within a period of one year, the decision of the Court executing the decree is taken to be conclusive. An authority for this proposition will be found in the case of Maharaja of Benares V. Patraj Kunwar A.W.N. (1905) 277 : 28 A. 262. Further, the court which was selling the debt was not a court constituted under the Civil Proceedure Code and was not authorised to exercise the powers laid down in Order XXI of the Civil Procedure Code. The law on the point lays down that the loans advanced are to be realised as if they were arears of revenue, vide Act XII of 1884, Section 5.

3. The appeal succeeds and the suit of the plaintiff-respondent fails. The suit is dismissed with costs throughout which will include fees in this Court on the higher scale.


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