Decided on January 16,1900

BANKE LAL Appellant


Arthur Strachey, C J - (1.) These two first appeals are connected appeals in connected suits, the same persons being plaintiffs and appellants in both. They are also connected with second appeals Nos. 405 and 633 of 1897, in which the same persons are plaintiffs, Each case raises the question of the rights of the plaintiffs under a purchase at an execution sale of certain zamindari property as against other purchasers who claim to have respectively bought at other sales certain portions of that property. It will be convenient to consider separately the two first appeals, as to which one judgment will suffice, as it did in the Court below.
(2.) The litigation arises out of the failure of the firm of Lachmi Narain of Bareilly. Several suits were brought against the firm by creditors, who obtained decrees. One of the decree-holders was one Kalka Prasad. He put in execution his decree against Ram Sarup and Piare Lal, the representatives of the debtor Lachmi Narain, and on the 20 November 1885, there were sold in execution of the decree the rights and interests of the judgment-debtors in a village called Said pur, or Saidpur Hawkins, and those rights and interests were purchased by the plaintiffs. One of the questions raised by the appeals is as to the exact extent of the interest acquired by the plaintiffs by that purchase, and whether it included the portions claimed by the defendants. At all events, it included the twenty biswas share of the judgment-debtors in mauza Saidpur. Objections were raised to the sale by the judgment-debtors on the ground of irregularity in publishing or conducting it under Section 311 of the Civil P. C., The Court executing the decree allowed the objections and set aside the sale on the ground that the notification of sale was so vague in its description of the property to be sold as to be misleading to intending purchasers. That order was passed on the 5 May 1886. Under the Code as it then stood no appeal lay from the order of the executing Court, but under the decisions of this and other High Courts a regular suit lay at the instance of the auction purchasers to set aside the order and to have the sale confirmed. Before, however, anything was done to question that order, certain portions of the village Saidpur were, on the 20 September 1886, sold in execution of other decrees passed against the same judgment-debtors. One of these was a decree of Kunwar Harcharan Lal. In execution of that decree two pieces of property were sold. One portion, described as "Hawkins Kothi, with inclosure and land," was purchased by Damodar Das, the respondent in F.A. No. 116. Another, described as "Begam Bagh, with masonry inclosure and kothi therein, and land," with other details not necessary to state, was purchased by Jagat Narain, the respondent in P.A. No. 115. On the 4 December 1886, both sales were confirmed under Section 312 of the Code, and in February 1887, the purchasers obtained possession. It is under these sales that the defendants-respondents resist the claim of the plaintiffs-appellants to possession of these plots by virtue of the sale of the 20 November 1885. That sale, it will be remembered, bad been set aside on the 5 May 1886. On the 20 September 1886, that is, on the very day of the purchases by the defendants, the plaintiffs brought a suit to set aside the order of the 5 May 1886, and for confirmation of their sale of the 20 November 1885. It has not been contended that by reason of that suit the defendants purchases are effected by the doctrine of lis pendens. That contention could not have been successfully raised; first, because there is no evidence to show that at the time of the sale of the 20 September 1886, the suit instituted on that date had already been filed; and, secondly, because, even assuming the institution of the suit to have come first, it clearly had not become "contentious" within the construction placed by this Court and other High Courts upon Section 52 of the Transfer of Property Act, 1882, at the time of the sale on the same day. The only persons whom the plaintiffs made parties defendants to that suit were the judgment- debtors whose property had been sold. They never made the present defendants parties to that suit, although the Court pointed out the advisability of their so doing if they claimed those portions of the property which the defendants had purchased on the 20 September 1886. The defendants to that suit, the judgment-debtors, filed written statements confessing judgment. Nevertheless on the 7 March 1887, the Court of First Instance dismissed the suit on the ground that the plaintiffs persistently refused to specifically answer the Court's inquiry as to the particulars of the property which they claimed to have purchased on the 20 November 1885, and more especially whether they claimed that that sale included the kothis and gardens subsequently purchased by the defendants. From that decision the plaintiffs appealed to the High Court, which, on the 14 May 1888, reversed the first Court's decree and allowed the claim. The judgment and decree of the High Court in the first place awarded the plaintiffs "possession of the property in suit, to wit, mauza Saidpur together with the groves." Secondly, it "declared that the auction-sale in favour of the appellants dated the 20th November 1885, was a good auction-sale, and that the property as aforesaid sold thereat was purchased by them." In September 1888, the plaintiffs obtained formal possession of mauza Saidpur in execution of the High Court's decree. They were resisted in obtaining possession of the plots which the defendants had purchased; and hence these suits, the first against Jagat Narain for possession of Begam Bagh (F.A. No. 115), the second against Damodar for possession of Hawkins Kothi (F.A. No. 116).
(3.) The case of the plaintiffs is that these properties passed to them under their prior purchase of the 20 November 1885, which they say was confirmed by the High Court with the effect that the confirmation related back to the date of the sale, and therefore their purchase of the 20 November 1885, must be given priority over the defendants purchase of September 1886. The case of the defendants is, first, that Hawkins Kothi and Begam Bagh were not in fact included in the execution sale to the plaintiffs of November 1885, and, secondly, that that sale was never validly confirmed as regards them, and is not entitled to priority over the sale under which they purchased.;

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