Bhim Naik, Auction-Purchaser v. Chakradhar Maity And Ors., Claimants Opposite Parties.

The Judgment of the Court was as follows:—

I am afraid that this Rule must be discharged. The applicant purchased in execution of a rent-decree what appears to be a non-transferable occupancy holding. When he was put in possession by the Court, it was found that certain persons were on the land who claimed to be in possession as purchasers from the original tenant. The Court peon gave symbolical possession only; but these persons who were, in fact, on the land applied under Or. 21, r. 100, Code of Civil Procedure. The Munsif made an order in their favour restoring them to possession under r. 101. Now, the present application is brought in revision against that order, notwithstanding that the auction-purchaser has a remedy by suit under Or. 21, r. 103, Code of Civil Procedure and, as a rule, this Court does not interfere in revision in such cases because there is another and better remedy open to the parties. I may say that I am by no means satisfied that the case of Panchratan v. Ram Sahai upon which the learned Advocate for the Petitioners relies was correctly decided. I see nothing in r. 100 about “the representatives of the Judgment-debtor” and I am at a loss to see any sufficient justification for importing decisions under sec. 47 into rules which contain nothing of the language of sec. 47 as regards representatives of the judgment-debtor. On the contrary, it seems to me that r. 101 provides explicitly and expressly for this very matter the question being whether the applicant is in possession on his own account or on account of some person other than the judgment-debtor. In such cases, the law says that a person cannot get execution against another person who is not the judgment-debtor in the suit. No doubt, the matter can be put right by suit; but ordinarily one cannot get possession of a property without bringing a suit against all the persons in possession. That being so, I am not at all satisfied that the Munsif is wrong; but, in any case, I am quite satisfied that it is unnecessary to interfere in revision in this case.

The Rule must be discharged with costs, hearing-fee two gold mohurs.

H.C.S

Rule discharged with costs.