DAH CHAND Vs. DADAMCHAND

JUDGEMENT

(1.) THIS is a Civil regular second appeal by the defendant Dahchand in a suit for rent and ejectment. The Civil Judge Doongarpur dismissed the suit but on appeal the learned District Judge Udaipur decreed it for a sum of Rs. 230/- being the arrears of rent from the 2nd February, 1954, to the 1st March, 1956, though impliedly that Court also maintained the dismissal of the suit so far as the relie) of ejectment was concerned.

(2.) THE material facts leading up to this appeal may shortly be stated as follows : the plaintiff respondent Dadamchand obtained a money decree against gulabchand, brother of Dahchand, who is the appellant before this Court. In execution of that decree Dadamchand brought the suit house for sale alleging it to be the property of Gulabchand. Dadamchand purchased it at a court-sale, and there is mate-ral on the record to show that he was put in possession of it on the 2nd February, 1954, vide the Sales-Amman's report Ex. 2. As things transpired, the appellant Dahchand executed the rent-note Ex. 1 with respect to this house in favour of the plaintiff on the same date agreeing to pay a monthly rent of Rs. 10/to the latter. It is this rent-note which is the basis of the present suit, the plaintiff's case feeing that the defendant had not paid the rent stipulated therein right from the 2nd February, 1954, upto the 1st March, 1956. Meanwhile, Gulabchand challenged the execution-sale which had been made in favour of the plaintiff on the ground that he had not complied with the requirements of Order 21, Rule 85, C. P. C. and therefore the sale was vitiated altogether. The Trial Court turned down his prayer. On appeal, the learned District judge, Udaipur, by his judgment dated the 26th April, 1954, set aside this sale. An appeal from that judgment was then brought to this Court, and this was dismissed by me by my judgment dated the 25th July, 1957, Ex. 3. It was held by me that the failure on the part of the plaintif who was the decree-holder there to deposit the balance of the purchase price within 15 days from the date of the sale as required by Order 21, Rule 85, C. P. C. could not but have the effect of vitiating the sale and the position was as if no sale had taken place. The judgment of the learned District Judge was confirmed accordingly.

(3.) IT is in these circumstances that the present suit came to be instituted by the plaintiff for recovery of arrears of rent and ejectment on the basis of the rent-note ex. 1 referred to above on the 5th July, 1956.