Decided on January 03,1950

Biswakesan Ramanuj Das Appellant
Krushna Chandra Auction Respondents


NARASIMHAM, J. - (1.) THIS revision petition is against the appellate order of the Additional District Magistrate of Cuttack exercising the powers of a Collector under the Orissa Tenancy Act dismissing an appeal filed by the petitioner against the order of the Rent -Suit Deputy Collector, Jaipur, rejecting his petition for restitution.
(2.) THE material facts are as follows: The petitioner was a tenure -holder (Madhyasatwadhikari) in respect of 12 acres 50 decimals of rent -free 'Lakhraj Bahel' iands in mouza, Barunia, khata No. 12 appertaining to touzi No. 18. Only cess was payable in respect of the property amounting to Rs. 6 -3 -0 per annum to the zamindar Pandit Shyamsundar Nath Satho (opposite party 2). The zamindar obtained an ex -parte decree for arrear cess against, the petitioner on 22 -2 -43 and in execution of the same put the property to sale. On 4 -6 -43 the entire property was purchased by opposite party 1 for a paltry sum of Rs .45/ - and the sale was confirmed on 12 -7 -43 and delivery of possession was also effected on or before 26 -11 -43. In the meantime as early as 15 -3 -43 the petitioner had applied for setting aside the 'ex -parte' decree and on 2 -4 -43 deposited a portion of the claim in Court. On 25 -7 -45 the 'ex -parte' decree was set aside and after revival of the rent suit it was dismissed on full satisfaction. In the execution proceeding the petitioner -judgment debtor on 10 -1 -44 filed an objection under Order 21, Rule 90, Civil P. C. for setting aside the sale on the gronud of fraud and material irregularity. The auction -purchaser (opposite party 1) filed an objection. The execution Court on 23 -6 -47 passed the following order. 'Suit has been dismissed as is seen from the certified copy of the order. Order 21, R. 90 application has been stayed. It is dismissed as the whole proceedings in the execution proceeding are null and void'. The aforesaid order of the rent -suit Deputy Collector is clearly wrong. If the entire execution proceeding became null and void in consequence of the setting aside of the 'ex -parte' decree and the original suit after revival was dismissed on full satisfaction the executing Court should not have dismissed the application under Order 21, Rule 90, Civil P. C. but may have recorded a note to the effect that it had become infructuous. Perhaps this is what the Court meant though the use of the expression 'dismissed' has led to some argument at the Bar before us.
(3.) THE petitioner then applied for restitution of the entire property basing his claim mainly on the fact that as the whole suit had been dismissed on full satisfaction the sale in execution of the 'ex -parte' decree should not stand. In that restitution he specifically alleged that opposite party 1 was not a stranger but a creature of the 'zamindar' (opposite party 2) and that valuable property had been sold for a paltry sum. Thus his clear case was that opposite party 1 was not a 'bona fide' purchaser for value but was a creature of the decree holder himself. On this allegation the executing Court ought to have allowed the parties to lead evidence and then come to a clear decision as to whether the auction -purchaser (opposite party 1) was or was not a 'bona fide' purchaser for value. Instead of determining this question the Court rejected the restitution petition on the ground that it was not maintainable. On appeal the learned Additional District Magistrate maintained the order chiefly on the ground that opposite party 1 was a stranger auction -purchaser and that restitution cannot be ordered against him.;

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