The Judgment of the Court was as follows:—
Walmsley, J.:— The Plaintiff-Appellant's case is as follows. In execution of a money decree against the Defendants he caused land belonging to them to be sold in auction: he bought it himself and took formal possession through the agency of the Court, he failed to obtain actual possession of plots Nos. 1 and 2, and although he obtained actual possession of plot No. 3, he was afterwards turned out by the Defendants. The Defendants in answer pleaded that the plots formed part of their non-transferable occupancy jote, that they knew nothing of the alleged sale until the institution of the present suit, and that the late was brought about by the suppression of notices.
There is no dispute about the nature of the jote of which the lands in suit form a part. The Defendants have occupancy rights in the jote, and there is no custom sanctioning the transfer) of the holding. On these admitted facts the Courts below held that the Plaintiff had acquired nothing. They also held that the sale was bad, and that on that account also the Plaintiff's suit could not succeeds. The Plaintiff in consequence lost his suit in both Courts, and it is he who prefers the appeal.
His first ground is that the lower Courts are wrong in the view they have taken about the effect of an execution sale of a non-transferable jote. The learned pleader who appears for the Defendants admits this, so it is not necessary to say more on this ground.
The second ground is that the Defendants ought not to have been allowed to challenge the sale in this suit inasmuch as they did not seek the remedy offered to them by Or. 21, r. 90. The right of the Plaintiff in the circumstances described to bring a suit is beyond dispute, and the argument put forward on his behalf is that inasmuch as the Defendants did not seek the relief afforded by Or. 21, r. 90 they cannot raise objections which might have been heard and determined immediately after the sale.
The penalty imposed on a negligent judgment-debtor is set out in r. 92, and it is that the Court shall make an order confirming the sale and thereupon the sale shall become absolute. This amounts to a judicial determination that none of the objections exists on which the validity of the sale could have been questioned.
Now, if we look at the judgments of the Courts below we find that although the Defendants pleaded ignorance of the sale and of the attempt to take possession, they did not press this point by having an issue framed upon it. They did not even, it appears, satisfy the Courts by negative evidence that the processes were suppressed. They contented themselves with showing that the Plaintiff's evidence in support of the sale and of the processes leading up to it, was scanty, and that the price paid was inadequate. The learned Munsif speaks of fraud, but the learned District Judge does not use the word, and limits his judgment to findings that the processes were not duly served, and that the price was inadequate. In other words, the findings of the final Court of fact do not go beyond the findings necessary for an order cancelling a sale under Or. 21, r. 90. It appears to me that the provisions of r. 92 preclude a judgment-debtor from asking a Court in such a suit us this to go into questions which affect nothing but the regularity of the sale.
My conclusion is that the Plaintiff must succeed on the second ground also, with the result that the appeal must be allowed, and the suit decreed with costs in all Courts.
Suhrawardy, J.:— I agree.
H.C.S