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Narayan Bera Vs. Jharu Mandal of Baratola and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1928Cal792
AppellantNarayan Bera
RespondentJharu Mandal of Baratola and ors.
Cases ReferredIn Bhikhin Jha v. Brij Behary Singh
Excerpt:
- .....against the order of the court below passed under order 21, rule 101, civil p.c., restoring the opposite party in possession of the disputed property. the facts are that the opposite party jharu mondal claims to be the purchaser of a non-transferable occupancy holding in execution of a decree against the tenant. the landlord subsequently brought a suit for rent against the recorded tenant and obtained a decree and attached the holding. jharu there upon applied to deposit the amount of the decree in court under section 170, ben, ten. act. his application finally came up for consideration before a full bench of this court in jharu mondal v. khetra mohun bera a.i.r. 1926 cal. 934. it was held that jharu was neither a judgment-debtor nor a person whose interest was voidabls on the sale,.....
Judgment:

Suhrawardy, J.

1. This is a revision application directed against the order of the Court below passed under Order 21, Rule 101, Civil P.C., restoring the opposite party in possession of the disputed property. The facts are that the opposite party Jharu Mondal claims to be the purchaser of a non-transferable occupancy holding in execution of a decree against the tenant. The landlord subsequently brought a suit for rent against the recorded tenant and obtained a decree and attached the holding. Jharu there upon applied to deposit the amount of the decree in Court under Section 170, Ben, Ten. Act. His application finally came up for consideration before a Full Bench of this Court in Jharu Mondal v. Khetra Mohun Bera A.I.R. 1926 Cal. 934. It was held that Jharu was neither a judgment-debtor nor a person whose interest was voidabls on the sale, and therefore not entitled to make the deposit. Thereafter the petitioner obtained possession of the holding in suit through Court and thereby dispossessed the opposite party. The opposite party thereupon applied under Order 21, Rule 100, to be restored to possession having been illegally dispossessed. The Court below has allowed his application and hence this rule.

2. It has been argued before us by the learned vakil for the petitioner that the opposite party being a transferee of a non-transferable occupancy holding is bound by the decree under which the petitioner purchased and as such he is not entitled to make an application under Order 21, Rule 100. It is contended that the words 'judgment-debtor' in Order 21, Rule 100, include all persons of the character of the opposite party; and a great deal of argument has been advanced before us in support of the proposition that a purchaser of a non-transferable occupancy holding is a representative of the judgment-debtor under Section 47, Civil P.C., and as such he is one of the persons who come within the expression 'judgment-debtor' as used in Rule 100. But the real point in the case has been missed. The only question we are called upon to decide is as to whether the opposite party is a parson who was in possession of the property on his own account or on account of some person other than the judgment-debtor. Under Rule 97 where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or obstruction. The Court is to hold an enquiry and if it finds under Rule 98 that resistance was offered by the judgment-debtor or by some other person at his instigation it shall direct that the applicant be put into possession of the property. Similarly under Rule 100 any person may make an application to the Court complaining of dispossession by the purchaser of immovable property in execution of a decree, but the nature of the enquiry will be as indicated in Rule 101, namely whether the person making the application was in possession of the property before dispossession on his own account or on account of some person other than the judgment-debtor. We have therefore to see in the present case if the applicant is a person who was holding the property on his own account. This view is in accord with that taken by this Court in Purna Chandra Kundu v. Monobini Devi : AIR1927Cal156 , whether he has any right to the property or is a mere trespasser is beside the scope of the present enquiry. It must, however, be noted in this connexion that according to the finding of the Court below the opposite party has been in possession of this property from 1907 and there has been no investigation in this case as to whether this long possession created any title in him other than that of purchaser of a non-transferable occupancy holding.

3. A large number of cases has been cited before us in support of the contention that the word 'judgment-debtor' in Rule 100 includes persons in the position of the opposite party. Before examining those cases one important fact should be noted that when the opposite party attempted to deposit money under Section 170, Ben. Ten. Act, it was held that he was not the judgment-debtor nor a person whose interest was voidable on the sale. But when he makes an application under Rule 100, Order 21, Civil P.C., he is supposed to be a judgment-debtor. This apparently leads to anomaly. 'Judgment-debtor' has been defined in Section 2(10), Civil P.C., as any person against whom a decree has been passed or an order capable of execution has been made. The opposite party in the present case does not clearly come within the definition as given in Section 2(10) of the Code. But it is contended that as a representative of the judgment-debtor under Section 47, Civil P.C., he must be considered as a judgment-debtor under Rule 100. The considerations which have induced the learned Judges in some of the cases to hold that such a person may be a representative within Section 47, Civil P.C. do not arise in this case for in the first place the question does not refer to execution, satisfaction or discharge of a decree; and in the second place the auction-purchaser is a third party and not the decree-holder. But there are two Patna cases which require special consideration. In Panchratan Koeri v. Ravi Sahai Singh [1918] 3 Pat. L.J. 579 it was held that the purchaser of the whole or part of an occupancy holding not transferable by custom is a representative of the judgment-debtor and entitled to object under Section 47, Civil P.C., to a sale of the holding in execution of a decree for rent. He is therefore not entitled to maintain proceedings under Order 21, Rule 100. That was a case in which the decree-holder was the auction-purchaser. The learned Judges have not considered the real question that arises in such cases as to whether the purchaser there was a person who was holding the property on his own account within the meaning of Rule 101. In Bhikhin Jha v. Brij Behary Singh [1917] 2 Pat. L.J. 478 it was held that the words 'judgment-debtor' in Order 21, Rules 100 and 101, includes the representative of the judgment-debtor and all persons who are bound by a decree against the judgment-debtor and by a sale in execution of such decree, on the ground that the words 'or representatives' in those rules had been omitted by oversight. I am not prepared to accept the reasoning; it seems to me to be of a speculative character. Once the Court started to supply words to the provisions of a statute on the ground that there was an omission by oversight the aim of the statute law to secure fixity of law would be frustrated and the Court would assume the function of the legislature. I Taking all the circumstances in the present case into consideration I have come to the conclusion that the opposite party in this case is a person who was in possession of the property before his dispossession by the petitioner on his own account and so was entitled to maintain an application under Order 21, Rule 100, Civil P.C. In this view I would discharge this rule with costs, three gold mohurs.

Cammiade, J.

4. There can be no room for doubt that the words 'judgment-debtor' in Rule 100, Order 21, Civil P.C., cannot include persons other than the actual judgment-debtor-the person against whom a decree has been passed. If the words had any other meaning the words that precede them, namely, 'where any person other than' would have no meaning. The matter is made perfectly clear by the provisions of the Rule 101 which lay down that the Court may pass an order putting in possession any person making an application under Section 100 provided that that person is not the judgment-debtor and does not hold on the judgment-debtor's account. It is obvious that the executing Court can-only execute a decree against the person against whom it has been passed. It has no jurisdiction to investigate the title of a third person and decide that the decree-holder has the right to recover possession against him. Even if the person in possession is a mere trespasser, it is not open to the executing Court to decide that that person has not title and to refuse to uphold the possession that he has. The law gives to the purchaser the right to bring a suit and that is the only remedy which the purchaser has if some person other than the judgment-debtor was in possession of the property. I therefore agree that this rule should be discharged.


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