Abdul Gaffur and Others vs Durga Prasad and Another

Adami, J.—It appears that two ''co-sharers having a six annas interest in an estate mortgaged their share to the present petitioners. The petitioners instituted a suit on their mortgage arid obtained a decree on the 14th June 1915. Thereafter, before execution was taken out, a common manager was appointed u/s 95 for the entire estate. When the petitioners took out execution of their decree they joined the common manager as a party. The six annas interest was put up for sale in execution of the decree and the petitioners themselves purchased it.

After their purchase they obtained possession of their share and proceeded to collect rents for their share from the tenants. The common manager objected and the petitioners insisted that having purchased and been put in possession of the six annas share they were entitled to collect the rents and that the common manager had no further authority in respect of that six annas share.

The point came up before the District Judge and he has decided that though the petitioners had purchased the share the common manager is still the common manager in respect of that share and the petitioners have no authority to collect the rents separately for themselves.

In my opinion the finding of the learned District Judge is absolutely correct. It is argued before us that because the common manager was made a party in the execution proceedings, therefore, by the sale in execution, the whole of such authority as common manager in respect to that share had ceased to exist, so it is also urged'' that the petitioners having obtained their decree before the appointment of the common manager are not bound by the appointment.

In my opinion it is quite clear that what petitioners purchased was a six annas interest in the estate as it stood at the time of the sale. At the time of the sale the estate was under the management of a common manager appointed u/s 95 and by that purchase all that they purchased was a six annas share subject still to the authority of the common manager. The common manager had been made a party to the execution case because the law required that he should be made such a party, but the fact of joining him will not make him liable under the decree for the decree was not obtained against him. His authority is common manager still exists and the petitioners had no power to collect rents separately PO long as the coming manager continued to be the common manager. It is plain that as their predecessors-in-interest were bound by shall appointment of the common manager, and in fact were parties to such an appointment, the petitioners must also be likewise bound.

The application must be dismissed with costs hearing fee, three gold mohurs.

Scroope, J.

I agree.