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Chowdhury Mohammad AmIn Vs. Bijoy Chand Mahatab - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal732,75Ind.Cas.20
AppellantChowdhury Mohammad Amin
RespondentBijoy Chand Mahatab
Cases ReferredNagendra Nath v. Chandra Sekhar
Excerpt:
bengal patni taluks regulation (viii of 1819), section 14 - sale of patni taluk set aside--purchaser, remedy of--suit to recover purchase money, whether maintainable. - .....be careful to indemnify him against all loss at the charge of the zemindar or person at whose suit the sale may have been made.' there is, in our opinion, no room for controversy that the first three items of the claim put forward in tire present action might have been urged in the previous litigation.4. the object of the legislature plainly was to avoid multiplicity of litigation and to afford protection to an innocent purchaser, the sale in whose favour might be cancelled without default on his p article thus, in bykunt nath singh v. maharajah dheraj mahtab chund 17 w.r. 447 : 9 b.l.r. 87, it was ruled that on reversal of a patni sale the purchaser was entitled to a refund of his purchase-money and to recover his costs from the zemindar. in mobaruck ali v. ameer ali 21 w.r. 252,.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the plaintiff in a suit for recovery of money instituted by the auction-purchaser at a sale under the Patni Regulation, 1819, which was subsequently set aside. The facts material for the determination of the questions raised before us are really not in controversy, and may be briefly recited. Patni Taluk Gopalnagar was sold under Regulation VIII of 1819 on the 15th May 1909, and was purchased by the plaintiff for Rs. 1,000. The father of the plaintiff and others were the patnidars under the defendant, the Maharaja of Burdwan. At the instance of one of the defaulters, who instituted a regular suit on the 14th April 1910, under Section 14 of the Patni Regulation the sale was set aside by the Subordinate Judge on the 22nd November 1911. The purchaser and the zemindar preferred separate appeals to this Court. These appeals were dismissed on the 19th July 1916. The purchaser thereupon instituted the present suit on the 18th July 1919 to recover from the zemindar the following sums of money:

(i) Rupees 550 in respect of purchase-money together with interest thereon.

(ii) Rent and cess paid by the plaintiff to the defendant during the time that plaintiff was in possession as purchaser.

(iii) Costs which the plaintiff had to pay in the High Court in the previous litigation.

(iv) The amount given as security by the plaintiff together with damages.

2. The defendant expressed his readiness to return the securities mentioned in the fourth item, but denied his liability to pay the amounts covered by the first three items. The Subordinate Judge has dismissed the suit; he has held the claim in respect of the first three items untenable under Section 14 of the Patni Regulation, while he has come to the conclusion that, there was no cause of action for the fourth item.

3. Section 14 of the Patni Regulation authorises the institution of a suit against the zemindar for the reversal of a sale and then provides as follows: 'The purchaser shall be made a party in such suits and upon decree passing for reversal of the sale, the Court shall be careful to indemnify him against all loss at the charge of the zemindar or person at whose suit the sale may have been made.' There is, in our opinion, no room for controversy that the first three items of the claim put forward in tire present action might have been urged in the previous litigation.

4. The object of the Legislature plainly was to avoid multiplicity of litigation and to afford protection to an innocent purchaser, the sale in whose favour might be cancelled without default on his p Article Thus, in Bykunt Nath Singh v. Maharajah Dheraj Mahtab Chund 17 W.R. 447 : 9 B.L.R. 87, it was ruled that on reversal of a patni sale the purchaser was entitled to a refund of his purchase-money and to recover his costs from the zemindar. In Mobaruck Ali v. Ameer Ali 21 W.R. 252, the purchaser was declared entitled to a refund of the purchase-money with interest; and to the same effect is the decision in Bejoy Chand Mahatab v. Amrita Lal 27 C. 308 : 14 Ind. Dec. (N.S.) 203. In Tara Chand v. Nafar Ali 1 C.L.R. 236 it was held that on cancellation of the sale the purchaser can require the Court to compel the zemindar to indemnify him on account of all payments of rent which he may have made. But the point remains, whether the remedy furnished by Section 14 is exclusive. Sir Francis Maclean, C.J., was inclined to answer the question in the negative in Radha Madhub v. Sasti Ram 26 C. 826 : 13 Ind. Dec. (N.S.) 1129. The facts of that litigation, however, did not attract the operation of Section 14 and Banerjee, J., was more cautious in his statement when he observed that Section 14 did not ordain that the remedy prescribed thereby was to be the sole remedy to which the auction-purchaser was entitled notwithstanding that by virtue of any other provision of law he might be entitled to a remedy against any other person than the zemindar. In the case then before the Court, the purchaser was held entitled to maintain an action against the defaulters to reimburse himself in respect of sums paid by him as rent to the zemindar daring the time that the sale was in force; these sums had clearly been paid by him as a person interested in the payment of money, which the defaulters were bound by law to pay. The question of the true scope of Section 14, whether, and if so, how far, the remedy provided thereby in the purchaser's favour excludes all other remedies, was raised before the Judicial Committee in Hukum Chand Boid v. Pirthichand Lal Chowdhury 50 Ind. Cas. 444 : 46 C. 670 : 23 C.W.N. 721 : 17 A.L.J. 514 : 36 M.L.J. 557 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 30 C.L.J. 71 : 26 M.L.T. 131 : 10 L.W. 416 : 46 I.A. 52 (P.C.), but was left undecided. Sir Lawrence Jenkins, it is noticeable, expressed a strong inclination in favour of the view that Section 14 should be held to make the remedy provided therein exclusive, unless such an interpretation was opposed to a long and uninterrupted course of construction to the contrary. It transpires, however, that the tendency of judicial decisions has been in favour of the view that Section 14 furnishes an exclusive remedy: See Tara Chand v. Nafar Ali 1 C.L.R. 236, Suresh Chandra v. Akkori Singh 20 C. 746 : 10 Ind. Dec. (N.S.) 503. Bejoy Chand Mahatab v. Tinkari Banerjee 58 Ind. Cas. 741 : 24 C.W.N. 617 and Bijoy Chand Mahatap v. Asutosh Chakrabarty 62 Ind. Cas. 73 : 48 C. 454 : 25 C.W.N. 42. We are not unmindful that the actual decision in Nagendra Nath v. Chandra Sekhar 5 C.L.J. 39, militates against his view, but the question as to the effect of Section 14 was neither raised nor considered there. We are of opinion that the purchaser must have recourse to the remedy provided by Section 14 to the extent that it is available and that he cannot maintain a separate suit to obtain the relief which, if he had so desired, might have been granted to him against the zemindar in the suit for reversal of the sale.

5. In the present suit, the Subordinate Judge has pointed out that the purchaser did ask for relief in the suit instituted by the defaulters under Section 14, but his prayer was not granted, as be was found to have made the purchase for the benefit of his father who was himself one of the defaulting patnidars. It further appears that in the appeal presented to this. Court the plaintiff complained against the judgment of the Subordinate Judge refusing to award compensation to him, but this Court confirmed the decree of the Subordinate Judge. The view may consequently be well maintained that the claim for compensation urged by the plaintiff as defendant in the previous suit was overruled. From this standpoint, the claim is clearly barred and cannot be re-agitated in this litigation. We hold accordingly that the Subordinate Judge has correctly found that the claim in respect of the first three items cannot be sustained.

6. As regards the fourth item the respondent has expressed his willingness to return the security deposit, namely, the four promissory-notes of the face value of Rs. 100 each and Rs. 26 in cash.

7. The result is that the decree made by the Subordinate Judge is affirmed, subject to the modification that the decree will direct the defendant to return to the plaintiff the security deposit mentioned above. As the appeal has substantially failed, the appellant must pay the respondent the costs in this Court.

Rankin, J.

8. I concur.


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