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Bama Sundari Dabai and anr. Vs. Ram Lall Moitra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal307
AppellantBama Sundari Dabai and anr.
RespondentRam Lall Moitra
Cases ReferredKally Prosunno Bose v. Dinonath Mullick
Excerpt:
sale in execution of decree-power of munsif's court to execute decree against property out of its local jurisdiction. - .....of the defendant on the ground that the sale was held by the munsif of serajgunge within whose local jurisdiction one of the six mouzahs forming this estate mouzah koailberh is situated; that four of the other mouzahs are situated within the jurisdiction of the munsifi of pubna, and the remainder within the jurisdiction of the munsifi of nattore, all these three munsifis at that time being portions of the district of rajshaye. in the appeal before us objections are also taken by each of the parties as to the matter of limitation. for the plaintiff it is contended that, as the defendant has not brought a suit under section 283 of the code of civil procedure of 1882, to get rid of the effect of the order rejecting his claim in the execution proceedings to which the plaintiff was no.....
Judgment:

Prinsep and Grant, JJ.

1. In execution of decree the defendant in September 1876 purchased certain t. property belonging to Sham a Churn Chowdhry. In execution of another decree against the same Shama Churn Chowdhry, the same estate which the defendant claims to have purchased was again attached, and the defendant objected, but his objection was overruled. The execution apparently proceeded no further for the judgment-debtor sold his estate privately to the plaintiff and satisfied this decree and other debts.

2. The dispute between the parties arose when proceedings were taken under the Bengal Land Registration Act. Plaintiff's claim having been rejected, he brings this suit for possession of the property with a declaration of his right to get his name registered. Plaintiff objects to the title of the defendant on the ground that the sale was held by the Munsif of Serajgunge within whose local jurisdiction one of the six mouzahs forming this estate mouzah koailberh is situated; that four of the other mouzahs are situated within the jurisdiction of the Munsifi of Pubna, and the remainder within the jurisdiction of the Munsifi of Nattore, all these three Munsifis at that time being portions of the district of Rajshaye. In the appeal before us objections are also taken by each of the parties as to the matter of limitation. For the plaintiff it is contended that, as the defendant has not brought a suit under Section 283 of the Code of Civil Procedure of 1882, to get rid of the effect of the order rejecting his claim in the execution proceedings to which the plaintiff was no party, he has forfeited his title to the property purchased by him in 1876. But all that was then decided was that the property was liable to that attachment. No further proceedings were taken in the execution of that decree, and, therefore, the position of the defendant was not affected by that order, nor was it necessary for him to sue to have it removed. Plaintiff's title moreover does not depend upon that order.

3. Another objection on the point of limitation is raised on behalf of the defendant. It is contended that, as no suit has been brought to set aside the sale, under which the defendant acquired his title, within the term of one year from the date of its confirmation as provided by Article 12[1] of the Limitation Act of 1877, the present suit is barred. This objection also appears to us untenable, because, if as contended for by the plaintiff the sale was held without jurisdiction, it would be unnecessary for her to bring a suit to set aside this sale; it would be sufficient to sue generally to establish her title by ejecting the defendant, or any one else who might be in possession, as having no valid title to the property. The main point before us is whether the sale under which the defendant derives his title was a good sale. That sale was held under the Code of 1859, the provisions of which in this respect are not altogether the same as those of the present Code.

4. The defendant apparently relies on the case of Kally Prosunno Bose v. Dinonath Mullick 11 B.L.R. 56 : 19 W.R. 434. In this case an estate situated partly in one district and partly in another was sold in execution of a decree by a Court having jurisdiction only in one district, and it was held that the sale conferred a valid title even to the land beyond the local jurisdiction of the Court holding the sale. The Court stated that for the purposes of attachment and sale in execution of a decree, it must be considered that the estate was wholly situated in the district over which the Court holding the sale had local jurisdiction. On the other hand the plaintiff relies on the case of Unnocool Chandra Chowdhri v. Hurry Nath Kundu 2 C.L.R. 334. It seems to us, however, that the facts of that case are not altogether in point, and that that decision is not really in conflict with the decision first quoted. The property in the first case was an estate, and the judgment of the Court seems to have proceeded mainly on the ground that it was impossible to sell part of an estate, as well as on a consideration of the Code of 1859 in this respect. In the case of Unnocool Chandra Chowdhri v. Hurry Nath Kundu 2 C.L.R. 334 the property was a taluk and the Court held that there was no reason why a portion of that taluk, a particular mouzah which alone fell within the local jurisdiction of one Munsif, should not be sold. As between the two eases we should feel bound to follow that of Kally Prosunno Bose v. Dinonath Mullick 11 B.L.R. 26 : 19 W.R. 434. But in the case before us the estate is not situated in two different districts over which no one Court has jurisdiction without a special order, but within the local jurisdiction of three inferior Courts all in the same district, and it is therefore contended that, as the jurisdiction over this entire estate could be exercised by one superior local Court whose jurisdiction extends over the entire district of Rajshaye, therefore no one single Munsif's Court would be competent to sell any land beyond its own local jurisdiction; and consequently if nothing short of the entire estate could be sold at the same time the decree should have been transferred to such superior Court. But we think that the principle on which the decision in Kally Prosunno Bose v. Dinonath Mullick proceeds is applicable to the present case, that is to say, the principle laid down for the larger jurisdiction of districts is applicable to the smaller jurisdiction of Munsifs. It may be more convenient that the sale in such cases should be held by a superior Court, but we think that a Munsif in whose local jurisdiction only a part of the property is situate, is not necessarily incompetent to sell the whole estate. With respect, therefore, to the points with which the judgment of the lower Appellate Court deals, we think that that judgment cannot be maintained. We therefore set it aside. We would point out to the Judge that it is competent for the respondent to support the judgment of the Court of First Instance by showing that the case should have been decided in his favour on a ground which was given against him, and that in order to do this he is not bound [318] himself to appeal or to take objection by a written memorandum. The terms of Section 561 are clear in this respect.

5. The case must, however, be remanded to the lower Appellate Court to determine what was the subject of the sale in 1876, the entire estate or only mouzah Koailberh; next whether the defendant on confirmation of his title as auction-purchaser obtained possession of the property purchased by him.

6. Costs to abide the result.

[1]

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Article 12:

------------------------------------------------------------------------

Description of suit: Period of Time from which period begins to

limitation. run.

------------------------------------------------------------------------

To set aside any of the One year.... When the sale is confirmed, or

following sales: would otherwise have become final

(a) Sale in execution of and conclusive had no such suit

a decree of a Civil been brought.]

Court;

(b) Sale in pursuance of a

decree or order of a

Collector or other officer

of revenue;

(c) Sale for arrears of Gov-

ernment revenue, or for

any demand recoverable as

such arrears;

(d) Sale of a patni taluq

sold for current arrears

of rent.

Explanation.--In this

clause 'patni' includes any

intermediate tenure

saleable for current

arrears of rent.


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