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Timmanna Banta Vs. Mahabala Bhatta - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported in(1896)ILR19Mad167
AppellantTimmanna Banta
RespondentMahabala Bhatta
Cases Referred and Abdul Gani v. Dunne I.L.R.
Excerpt:
civil procedure code, sections 311, 588, clauses 16, 28 and section 622. - - best, j......decision of a full bench of the calcutta high court, which is to be found in asmutunnissa begum v. ashruff all i.l.r. 15 cal. 488 and this latter decision was followed by this court in subbarayadu v. pedda subbarazu i.l.r. 16 mad. 476. but as is pointed out by petheram, c.j., in the recent case of abdul gani v. dunne i.l.r. 20 cal. 418 the full bench decision in asmutunnissa begum v. ashruff ali i.l.r. 15 cal. 488 does not exclude the right to come in under section 311 of any person whose interest would pass by the sale. as remarked by ghose, j. in the same case, the test is 'whether the petitioner would be entitled to bring a suit to contest the sale or to recover the property,' and it has been held that the beneficial owner is bound by a decree passed against the benamidar.4......
Judgment:

Best, J.

1. The preliminary objection is taken that, as the order sought to be revised is one remanding the case and therefore appealable under Clause 28 of Section 588 of the Code of Civil Procedure, this petition for revision under Section 622 is not maintainable. On the other hand, it is contended for the petitioner that the order in question being one passed under Section 588 (Article 16), any further appeal is barred by the last paragraph of the same section, which says that 'orders passed in appeals under this section shall be final.'

2. Clause 28 must, I think, be read with the final paragraph, and so read, it must, I think, be held not to apply to orders of remand made in appeals under the same section.

3. The preliminary objection is therefore disallowed. Then the question is whether the Subordinate Judge is wrong in holding that the counter-petitioner has a locus standi under Section 311 of the Code. The case in Abdul Huq Mozoomdar v. Mohini Mohun Shaha I.L.R. 14 Cal. 240 on which the Subordinate Judge rests his order, has no doubt been overruled by a subsequent decision of a Full Bench of the Calcutta High Court, which is to be found in Asmutunnissa Begum v. Ashruff All I.L.R. 15 Cal. 488 and this latter decision was followed by this Court in Subbarayadu v. Pedda Subbarazu I.L.R. 16 Mad. 476. But as is pointed out by Petheram, C.J., in the recent case of Abdul Gani v. Dunne I.L.R. 20 Cal. 418 the Full Bench decision in Asmutunnissa Begum v. Ashruff Ali I.L.R. 15 Cal. 488 does not exclude the right to come in under Section 311 of any person whose interest would pass by the sale. As remarked by Ghose, J. in the same case, the test is 'whether the petitioner would be entitled to bring a suit to contest the sale or to recover the property,' and it has been held that the beneficial owner is bound by a decree passed against the benamidar.

4. The case of the counter-petitioner is, that the first defendant in the suit against whom the decree was obtained was merely a benamidar of the village, and that lands therein which belong to the petitioner have been sold without proper proclamation, etc.

5. The decision in Asmutunnissa Begum v. Ashruff Ali I.L.R. 15 Cal. 488 and Abdul Gani v. Dunne I.L.R. 20 Cal. 418 are both authorities for upholding the Subordinate Judge's order.

6. This petition is dismissed with costs.


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