Srinath Ghosh vs Annoda Prosad Roy

Petheram, C.J.—We think that this Rule must be made absolute. The facts of the case are a little complicated; but when they are understood, there is no great difficulty about the matter. They are these :--Some person, whose name is not material, obtained a money decree against another person, whose name also is not material; and in execution of that decree, put up some portion of the property of his debtor for sale. At the sale the property was bought by a person named Annoda, and Annoda was put into actual possession by the Court. After that, another decree was obtained against the same debtor by a person called Becharam to recover a certain sum of money which had been secured by a mortgage of this property which was purchased by Annoda, and in pursuance of that decree the property was again put up for sale and bought by Becharam himself. So, the state of things then was, that Annoda was in possession under his purchase, and Becharam had obtained a decree for realization of the money owing to him by the sale of the same property under his mortgage. That being the state of things, Becharam by a proceeding of Court was placed in possession of the property; and in the course of that proceeding Annoda was turned out. Annoda was thus out of possession. His own execution having been completed, and he having been placed in possession, he had been put out of possession by Becharam. And he accordingly took proceedings u/s 335 of the CPC in order to get back the property. An enquiry was held under that section, and an order was made to the effect that as Annoda had been dispossessed, by Becharam, he was to be replaced in possession by the Court. But when Annoda came to endeavour to get possession he was resisted, not by Becharam but by a person called Srinath, who was in possession and claimed to be in possession under a totally different title, that is to say, he claimed possession under a purchase from the Collector at a sale for Government claims which would of course be a charge and give a prior title.

Under these circumstances Annoda made an application under sec. 331 treating the order for possession made in his favour u/s 335 as a decree, the execution of which was resisted, and asking for another enquiry as between himself and Srinath. His application was granted by the Subordinate Judge on the 4th February 1896; and the present Rule has been obtained by Srinath to revise the order of the Subordinate Judge directing an enquiry, on the ground that he had no jurisdiction to make it.

Babu Nilmadhub Bose, who has appeared to show cause, admits that the order cannot be sustained u/s 331 but contends that it can be sustained u/s 335, because, he says, his client Annoda was executing his original decree and in the course of his obtaining possession under that original execution he was resisted by this person Srinath and therefore was entitled to another enquiry under the "provisions of that section.

Now when we look at the facts as we have recited them, it is obvious that this is not the case, for by the execution of the original decree, so far as Annoda was concerned, he was completely put in possession of the property, and he was afterwards turned out by a proceeding of law, and now he tries to get back by virtue of another enquiry u/s 331. But it is clear that neither u/s 331 nor u/s 335 can the matter be dealt with. This person Annoda, having once been put into possession and afterwards turned out by a proceeding of law, cannot now get back possession except by instituting a suit to establish his title as against Srinath. Under these circumstances, we think that the Judge had no jurisdiction to direct the enquiry which he has directed and the Rule must be made absolute with costs.