Patna High Court
Malik Abdul Mokit vs Malik Abdul Rashid on 22 January, 1929
Equivalent citations: 123IND. CAS.400, AIR 1929 PATNA 391
JUDGMENT Ross, J.
1. These are two appeals from an order passed by the Subordinate Judge of Monghyr on an application by the judgment-debtor purporting to be under Section 47, and under Order XXI, Rule 100, Civil Procedure Code the opposite party being the decree-holder auction-purchaser. The application arose in connexion with a proceeding in the execution of a decree on two mortgages and is concerned with the extent of the property mortgaged. In the first bond the property is described as a share in " Mauza Kakand" and in the second bond as share in "asli and dakhli Mauza Kakand," while in the schedule it is merely described as ''Mauza Kakand." This was in 1910. The decree on the mortgage referred to the property as "asli and dakhli Mauza Kakand." The decree-holder purchased the mortgaged property in execution of his decree and then applied under Order XXI, Rule 95, for delivery of possession, and the writ described the property as 17 gandas 3 kowris and odd share in mauza Kakand asli and dakhli". The peon who executed the writ, reported that he went to Mauza Kakand and its tolas Barah Jara and Lhiuni appertaining to Kakand asli and dakhli Mauzas Kundri, Sankurha, Harla, Chandwara, Tekoi, Lakhapur and Dharampur in Pargana Bisthazari, Tauxi No. 8221, the milkiat properties in respect of possession which the delivery of possession was sought for and delivered possession. Thereupon the present application was made in which it was pleaded that the decree-holder had no right to obtain delivery of possession of Kundri, Sankurha, Harla, Chandwara, Tekoi, Lakhapur and Dharampur and that the peon did not in fact go to these villages and deliver possession of them. It was prayed that the proceedings about the delivery of possession to the decree holder might be disallowed and an order be passed to the effect that the villages above mentioned had not been sold by auction in execution of the decree and the objector's interest had not been in any way effected by the auction-sale and delivery of possession and that these villages were in the khas possession of the objector.
2. The learned Subordinate Judge decided partly in favour of the judgment-debtor and partly in favour of the decree-holder. He held that Kundri, Sankurha, Harla and Dharampur were dakhli villages of Kakand and with respect to these the judgment-debtor has appealed; and that Chandwara, Tekoi and Lakhapur were not dakhli villages of Kakand and in respect of these villages the decree-holder has appealed.
3. The question at issue in this case is one of importance to the parties, because the villages are of considerable value and the rights of the parties cannot be finally determined in a summary proceeding of this kind. All that is possible on this application is to review the documents that have been produced with a view to the summary settlement of the dispute pending a regular suit. A point of procedure was taken by the decree holder. It was contended that the application did not lie. It is true that an application in this form does not seem to be provided for in any of the rules relating to the delivery of possession in execution of a decree or after an execution sale. It has been ruled by a Full Bench of this Court in Abdul Gani v. Raja Ram 35 Ind. Cas 468 : 1 Pat. L.J. 232 : 20 C.W.N. 829 : 3 P.L.W. 62 (F.B.), that a question of this nature is not a question relating to the execution, discharge or satisfaction of the decree; and that it does not arise between the judgment debtor and the decree-holder as such, and consequently does not fall within the scope of Section 47, and no appeal lies. From the terms of the application, although it purports to be under a. 47, and Order XXI, Rule 100, it seems to me that it was in effect an application to the Court under Section 151, to prevent an abuse of its process under its inherent power; and if the order be looked upon in that way (as I think it should be), then it is subject to correction by this Court: Baraja Bhusan v. Sris Chandra Tewari 47 Ind. Cas. 719 : 4 Pat.L.J. 20 : (1918) Pat. 337.
[His Lordship referred to the evidence and proceeded:] The conclusion that I come to on the documents produced in this case is that the writ of delivery of possession did not extend to Kundri, Sankurha, Harla, Chandwara, Toki, Lakhapur and Dharampur especially as neither the application for delivery of possession nor the writ itself had specified these as the dakhli villages. If the bailiff purported to give possession of these villages, the delivery was without effect and the possession of the judgment-debtor continued as before. If the auction-purchaser claims that these villages passed to him by his purchase, he must establish this in a regular suit. The appellant in Appeal No. 151 is entitled to the costs of the appeal, and Appeal No. 84, is dismissed with costs.
Chatterji, J.
4. I agree.