Janki Mahton vs Baij Nath Prasad Singh and Others

Kulwant Sahay, J.—This is an application on behalf of the petitioner whose claim under Order 21, Rule 58, Civil P.C. has been disallowed by the Court below.

His case is that the property sought to be attached and sold was purchased by the petitioner in execution of a rent decree obtained by the father of the present decree-holders against the present judgment-debtor Jobraj Koeri. The petitioner produced a sale certificate, which is marked Ex. 1 in the case. He also produced the writ for delivery of possession in respect of the land purchased by him under the sale certificate (Ex. 1), and this writ was marked Ex. 2 in the case. His case was that he has been in possession since his purchase about 11 years ago, and that the landlord is unwilling to accept rent from him, and he had on certain occasions to deposit the rent in Court and he produced a challan (Ex. 3) showing deposit of rent u/s 61, Ben. Ten. Act.

The learned Munsif, who heard the claim case referred to the fact that the petitioner claimed to have purchased the land in question at a Court sale, but he makes no reference to the sale certificate or to any of the documents produced on behalf of the petitioner. He has wholly overlooked the fact that the land in respect of which he preferred the present claim was alleged to have been purchased by the petitioner in execution of a rent decree obtained by the father of the present decree-holders against the present Judgment-debtor and if the petitioner purchased this land in execution of a rent decree, there seems to be good reason for his contention that that property ought not to be sold again as the property of the judgment-debtor Jobraj Koeri.

The learned Munsif considered certain circumstances appearing from the oral evidence and appears to be under the impression that the petitioner was not the real purchaser but he was a mere benamidar for the judgment-debtor. No such case appears to have been made in the papers which are on the record of this case. It is true that if the petitioner has got another remedy by way of suit, this Court ordinarily will not interfere, but when the order complained against is an order which is passed without consideration of the evidence adduced before the Court below, it is a fit case in which this Court ought to interfere. Here we have got a document, namely, Ex. 1, which on the face of it shows that the present claimant purchased the land, which he now claims in execution of a rent decree obtained by the predecessor-in-interest of the present decree-holders against the present judgment-debtor.

This was a fact which ought to have been considered in considering the question whether his claim in the present case is a just claim or not. If the Court before whom the evidence was produced does not consider the evidence, and decides the case on certain probabilities appearing from the oral evidence, his decision is liable to be revised by this Court even though another remedy is open to the petitioner by way of a regular suit.

I would therefore set aside the order, of the Munsif, and send the case back to him for re-hearing after consideration of all the evidence on the record.