Sughar Sao vs Ganpat Das and Another

Kulwant Sahay, J.—This is an application in revision against the order of the Subordinate Judge of Patna under Order 21, Rule 99, Civil P.C., dismissing the application of the auction purchaser under Order 21, Rule 97, of the Code. The petitioner purchased a house in execution of an award made by the Registrar of the Co operative Societies in favour of the Trades Co-operative Bank. He complains that on going to take possession . of the house he was resisted by the opposite party who are the brothers of the judgment-debtor Goverdhan Das against whom the award was made. There is no allegation that the obstruction was caused by the judgment-debtor or by the opposite party at the instigation of the judgment debtor.

In fact it is alleged that the opposite party themselves offered resistance in their own right as brothers and members of the joint family of Goverdhan Das. The learned Subordinate Judge has found that the brothers were not named as judgment-debtors and were not proceeded against as such and the award obtained against Goverdhan Das alone did not affect the title of the opposite party to remain in possession of the house to the extent of their 2/3rds share. Under Order 21, Rule 98, the Court could put the auction purchaser into possession of the property only if it found that the obstruction or resistance had been occasioned without any just cause by the judgment-debtor or by some other person at his instigation.

As I have said this is not the allegation and consequently not the finding. Under Order 21, Rule 99, if the Court is satisfied that resistance or obstruction was occasioned by any person other than the judgment-debtor, claiming in good faith to be in possession of the property on his own account, the Court is bound to make an order dismissing the application.

This is what has happened in this case and the order of the Court below finding that the opposite party were claiming in good faith to be in possession is an order which cannot be interfered with. The remedy of the petitioner lies not by way of revision but by way of a regular suit.

It is contended that as the opposite party are members of the joint family of Goverdhan Das, the award obtained against Goverdhan Das is binding on the opposite party. The question whether Goverdhan Das was the karta of the family and represented the family and whether all the members of the family ware bound by the award as a question which has to be determined by a regular suit and not in a summary proceeding under Order 21, Rule 99. The application is dismissed with costs: hearing fee two gold mohurs.