Srikishna Rai and Another vs Ramsaran Rai

Mullick, J.—The plaintiff brought a suit against the defendant for money and on 1st May 1915 attached before judgment the holding of the defendant. The suit was decreed on the 30th November 1915. On the 6th July 1916 the defendant gave a mortgage of part of the holding to Sri Krishna Rai. On the 11th July 1916 execution of the money decree was taken out by the plaintiff and the holding was attached for the second time on the 16th July 1916. Notice under Order XXI, rule 66, Civil Procedure Code, for settling the sale proclamation was served upon the defendant on the 4th August 1916, and the holding was sold on the 30th November J916 and was purchased by the decree-holder. An application was then made by the defendant to set aside the sale. A similar application was also made by the mortgagee. Both applications were dismissed by the Munsif and there were appeals to the District Judge with a like result.

The present defendant and the mortgagee have preferred second appeals to this Court, namely, Appeals Nos. 71 and 70 of 1918.

Appeal No. 71.--In this appeal there is a finding of fact, which is fatal to the appellant. It is found that, the tenant-defendant was served with notice of the sale proclamation under Order XXI, rule 66. In so far as his application under Order XXI, rule 90, Civil Procedure Code, attacks the sale on the grounds of irregularity and fraud in publishing and conducting the sale, there is no second appeal against the learned Judge''s order. The tenant, however, is competent to prefer a second appeal in so far as the application was one u/s 47, Civil Procedure Code.

Now, this objection as to non transfer-ability, which is the ground on which he could come in u/s 47, was an objection which it was competent for him to take, firstly, when the attachment before judgment was made, secondly, when the attachment was made in the execution proceedings, and thirdly, when he was called upon to settle the sale proclamation. The law is that a tenant is entitled to get a sale set aside on the ground that the holding was non-transferable, but he must make his objection at the earliest possible time. In this case, it being found as a fact that the tenant was served with notice under Order XXI, rule 66, he ought, at least, to have come in then and made his objection with regard to the non-transferability of the holding. Not having done so, he cannot be heard in this Court. His appeal is, therefore, dismissed with costs.

Appeal No 70.--Then let us turn to this appeal. Here it is contended that there is no bar in law to a man''s purchasing a share in a non-transferable occupancy holding. This is conceded, and it is open to the mortgagee to apply u/s 47 as a representative of the judgment debtor. But the mortgagee was admittedly a purchaser pendente lite and is, therefore, bound by all the equities enforceable against the judgment-debtor. Therefore, he is not competent now to raise the objection, which the judgment debtor has been found incompetent to raise.

His appeal, therefore, must also be dismissed with costs.

Thornhill, J.

I agree.