This rule was issued in the following circumstances:—It appears that mouzah Rhatooria Lakhikul is one of certain properties which were constituted waqf by the great grandfather of the Petitioner. In the year 1898 a dispute arose as to the post of Mutwalli between the Petitioner and the Petitioner's father's uncle Irshad Ali Khan Chowdhury, and counterclaims were preferred by the two contending parties for the registration of their names respectively under the Land Registration Act in respect of the estate in which the village in question is included. A reference was made to the District Judge under sec. 55 of the Act. The decision was in favour of the Petitioner and the Judge directed that the Petitioner should be put in possession of the property. The opposite party, at the time of the delivery of possession, objected on the ground that he held possession of the village in question as a permanent tenure-holder, having acquired a title by auction purchase in execution of a mortgage decree obtained by one Pran Hari Pramauik against Irshad Ali Khan Chowdhury. The Naib-Nazir declined to entertain the objection, and the Petitioner was put in possession. No steps were taken by the opposite party to obtain any recognition of his title from the District Judge under whose orders possession had been given to the Petitioner, but some mouths afterwards he applied to the Court of the Subordinate Judge from whom he had originally obtained possession as auction-purchaser representing that the sale certificate originally granted to him was defective on account of his not having before the grant of the certificate put in the landlord's fee and the necessary process fee for the issue of notice. He asked that the proceedings might be amended upon receipt of the necessary landlord's fee and process fees, and having obtained an order of the Court reopening the execution proceedings lie applied for a fresh writ of possession in pursuance of the amended sale certificate. The Subordinate Judge, in accordance with his prayer, issued a fresh writ of possession on the 2nd October 1899. When the Naib-Nazir of the Subordinate Judge's Court went to give possession to the opposite party, he was resisted on behalf of the Petitioner and accordingly possession was not given. The opposite party omitted to make any complaint before the Subordinate Judge of the resistance on behalf of the Petitioner but put, in a fresh application on the 25th November 1899, upon which a fresh writ for delivery of possession was issued by the Subordinate Judge on the 2nd December 1899. Before any action could be taken upon that writ, the Petitioner on the 4th December 1899 presented an application to the Subordinate Judge, representing his right and possession in the property, but the Subordinate Judge declined to take any action upon it. Resistance was again made to the delivery of possession, and again the opposite party without making any complaint upon which an enquiry could be held by the Court into the claim of the Petitioner applied on the 22nd December for a third writ for the delivery of possession. The Petitioner on the 5th January 1900 before any action was taken for the delivery of possession applied again to the Subordinate Judge setting forth afresh the right and possession which he claimed to hold in the property in question, but the application was again rejected on the ground that the Petitioner was not a party to the execution proceedings on the 26th January 1900. An attempt was made to execute the writ of possession, but it failed again on resistance being offered on behalf of the Petitioner. On the 10th February 1900 the opposite party still without making such a complaint as would enable the Court to deal with the dispute between the parties, made a fourth application for a writ for delivery of possession, and an order was accordingly made oil that date. The rule was granted to show cause why all the orders of the Subordinate Judge, set forth in the petition, should not be set aside. It has been contended for the Petitioner that the original order for the reopening of the execution proceedings and the grant of a writ of possession to the opposite party, after possession had been given to the Petitioner under the land registration proceedings, was bad and without jurisdiction, and that it was obtained by concealing from the Subordinate Judge the fact that the opposite party had actually been dispossessed as the result of the delivery of possession to the Petitioner and the land registration proceedings. It further contended that after resistance had been offered to the delivery of possession on the first occasion by the Petitioner the Subordinate Judge should have enquired as regards the resistance, and that without such an enquiry he had no jurisdiction to issue the successive writs of possession which he has since issued.
On behalf of the opposite party it has been contended that the Petitioner, not having been a party to the execution proceedings in the course of which the opposite party applied for delivery of possession, has no locus standi to move the Court to act under sec. 622 of the Civil Procedure Code, and the case of Mahomed Foyez Chowdhry v. Goluck Bass has been cited as authority for the proposition that it is only on the application of a party interested that the High Court can act as a Court of revision under sec. 622. That case does not appear to lay down that in no circumstances can the Court act under sec. 622 otherwise than on the application of a party to the proceedings against which revision is sought to be taken. The Court then was invited to exercise its powers by a District Judge who considered an order of a Subordinate Judge against which no appeal lay open to objection, and this Court pointed out that the proper course was for the party dissatisfied with the order either to apply for a review of judgment to the Subordinate Court which made the order or to make a motion direct to this Court under sec. 622. It does not appear to us that ruling has any application to the facts of the present case. We are not prepared to say that on the facts which we have stated the Petitioner has not a sufficient interest in the orders complained against to justify him in moving the Court to exercise its revisional powers.
Reference has also been made on behalf of the opposite party to certain passages in the judgments in the case of Raghu Nath Gujrati v. Rai Chatraput Singh, the effect of which is to discourage the application of sec. 622 in cases in which the legislature has provided some other remedy, and it is contended that in the present case the proper remedy of the Petitioner is by a regular suit. It appears to us that on the facts there is no real reason why the Petitioner should be driven to a regular suit, the obtained possession by the course of law, and the person dispossessed was the opposite party. The opposite party has, it would seem all along, deliberately refrained from taking such action as would have the effect of bringing the dispute properly before the Court, that is, in the first instance, the Court of the District Judge which gave possession to the Petitioner under the Land Registration Act, and in the subsequent proceedings the Court of the Subordinate Judge which has issued successive fresh writs for delivery of possession. It seems clear from the report of the Judge's Naib-Nazir that the opposite party was actually dispossessed when possession was given to the Petitioner, and his remedy was either to prefer an objection in the Court of the District Judge or to institute a regular suit. It was not, we think, open to him to endeavour to regain possession by the device of reopening the old execution proceedings before the Subordinate Judge and taking possession afresh under his title as auction-purchaser. We think that it was not open to the Subordinate Judge to make the original order for delivery of possession over again, and we cannot suppose that he would have done so had he been aware that the opposite party had already been dispossessed under the process of a Court of competent jurisdiction. In this view it does not appear to us to be necessary to express any opinion as to whether the subsequent orders for the issue of fresh writs were with jurisdiction in spite of the omission of the opposite party to ask for an enquiry into the resistance with which the successive attempts to deliver possession were met on each occasion.
We think that the proceedings of the Subordinate Judge were bad ab initio and that the rule should therefore be made absolute and the whole of the order passed in these proceedings set aside. We assess the hearing fee at 8 gold-mohurs.
H.P.C
Rule made absòlute; orders set aside.