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17. Let the case be laid before the Chief Justice for orders.

Rampini, J.

18. In this suit the plaintiff's sue to have the sale of a certain shikmi taluk, in which they have a share, set aside so far as they are concerned, and to have it declared that the sale in question did not affect their interests in the taluk. The plaintiffs and the defendant No. 1 are admittedly the owners of this shikmi taluk. It was sold on the 11th December 1894 in execution of a decree for rent obtained by the defendants Nos. 3 and 4, who are fractional shareholders of the zemindari, against the defendant No. 1. The taluk was purchased at the sale by the defendant No. 2, who contends that he purchased the whole taluk, and that the right of the plaintiffs as well as of the defendant No. 1 passed to him at this sale. The Subordinate Judge found against the plaintiffs and dismissed their suit. They now appeal and contend on various grounds that his judgment is wrong.

20. But these cases seem to me to be no authority for holding that the plaintiffs in this case are bound by the sale held in execution of the decree obtained against the defendant No. 1, for (1) it does not appear that the plaintiffs and the defendant No. 1 are members of a joint Hindu family; (2) they are not said to be governed by the Mitakshara law; (3) there is nothing to lead to the conclusion that the defendant No. 1 was sued as representing them; and (4) it does not appear that what was sold was the shikmi taluk. On the contrary, from the proclamation of sale (Exhibit C), the sale certificate (Exhibit D), and the order confirming the sale (Exhibit 15), it is clear, I consider, that the sale which took place under Section 316 of the Code of Civil Procedure purported to convey only the right, title and interest of the judgment-debtor, defendant No. 1, in the shikmi taluk. A consideration of these documents in detail seems to me to put this matter beyond a doubt. The first of them, the proclamation of sale (Exhibit C) issued under Section 287 of the Code of Civil Procedure proclaims that "the property of the aforesaid judgment-debtor" (i.e., defendant No; 1) "as mentioned in the following Schedule shall be sold." The sale certificate (Exhibit D), declares that what was sold was "the judgment-debtor's right to the 2 annas 13 gandas 1 cowri 1 krant share in the said taluk." The order confirming the sale, (Exhibit 15), commences with the preamble that "whereas the following title, ownership and interest were on the 11th day of December 1894 sold by the Nazir," and concludes by certifying that "the sale proceeds of the judgment-debtor's right to the 2 annas 13 gandas 1 cowri 1 krant share in the taluk amounted to Rs. 160."

22. I would accordingly set aside the judgment of the Subordinate Judge and restore that of the Munsif.

23. There being a difference of opinion between the two learned Judges, the case was referred, under Section 575 of the Civil Procedure Code, to Mr. Justice Banerjee, who delivered the following judgment:

Banerjee, J.

24. This appeal arises out of a suit which, after the amendment of the plaint allowed by the first Court, must betaken to have been brought by the plaintiffs, appellants, for setting aside the sale of a shikmi taluk sold in execution of a decree as fraudulent and collusive, or in the alternative, for obtaining a declaration that the sale did not affect the rights of the plaintiffs; and for recovering possession of the plaintiffs' shares in the shikmi taluk.

25. The main allegations upon which the suit was brought were, that the plaintiffs and defendant No. 1 were owners of a 2 annas 13 gandas 1 cowrie 1 krant share, bearing a separate rent, of a shikmi taluk named Kanai Balai; that defendants Nos. 3 and 4, the proprietors of a certain share of the estate under which the shikmi taluk was held, brought a suit for arrears of rent due to them in respect of that share of the shikmi taluk and obtained a collusive decree; and in execution of that decree the defendants 3 and 4 fraudulently suppressing the usual sale proclamation brought about a sale, at which defendant No. 1 purchased the said share of the taluk benami in the name of defendant No. 2.