2. Where A sued to recover certain mortgaged lands, on the
ground that when, by endorsed kubalas, the lands were trans-
ferred, there was a counter-ikrar to restore the lands, after
realisation by usufruct of the sum due on the mortgage, but
there was no proof of this agreement, order of the lower court,
treating the transfer as an absolute sale, upheld,

3. A gave a six years' potta to B, providing that B should pay
rent to C in liquidation of debt due to C by A.
Petitioner. plaintiff, subsequently bought the land from A and
sued B for rent under the potta. Held that as A could not
have sued B, so plaintiff, only having A's right, could not sue,
4. In this case, the sale of property by a minor was held by the
zillah judge to be void ab initio but as the sale is shewn to
have been made for the benefit of the minor, and his mother,
who was his guardian, acknowledged the execution of the sale
in good faith, the fact of the minority of the vendor was held,
in special appeal, not to vitiate the sale,

.

5. The lower appellate court having cancelled the sale of the
rights and interests of a widow in certain property, on the
ground that she had only a life interest in it, his order was
reversed, as such life interest might be sold,

668

1151

1269

1371

6. The execution of a deed, and that its terms were those of an
absolute sale, being admitted, held that it was for the vendor
to prove that the transaction was only one of conditional sale,... 1372
7. Special appeal rejected, as the possession of the benamee pur-
chasers, alleged vendors, was not established, and the plea of
fictitious purchase in fraud of creditors was not proved,
8. Refund of purchase-money of certain land purchased by plain-
tiff, adjudged, on the ground of the vendor's title being guar-
anteed to plaintiff, the vendee,

9. Where A sold a decree of court against B to C, in part pay-
ment of a debt to D, and D consented to look to Ĉ for rea-
lisation of the money decreed against B, D had no longer a
right to treat the decree as A's porperty,

10. No proof of the consideration for the alleged purchase of
certain bhurna rights having been given, held that their transfer,
even if made before any prohibition to alienate, could not be
recognised. The alienation having been made pending a suit,
and the purchaser having given a power to the son of his vendor
to transfer or sell the very bhurna rigths he had bought, led the
Court to consider the alleged purchase false.

The mere recital of a purchase in a subsequent deed of sale,
especially when that deed is itself suspicious, is no proof of
consideration having passed,

1. Held, on review of the judgment of the Court in special appeal,
that the sheriff transferred and could have transferred only the

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1683

rights and interests of the Union Bank in certain factories to
petitioner, and that for the rent of a period antecedent to the
purchase of the factory by the petitioner, that is, for the personal
debts of the then owner, the petitioner is not, under the sheriff's
sale, liable; consequently so much of the decision of the
lower court, as decreed, against the special appellant, the rent
for 1255 B. E, is reversed, and the special appeal is decreed,
with costs,

2. It is not necessary, for the completion of a sale in execution
of a decree, that a roobukaree confirming such sale should be
drawn up by the officer holding the sale, nor does the absence
of such roobukaree, nor even of a byenama, invalidate the sale
if the purchaser have paid the sale price.

A sale is complete if the auction-purchaser pay the purchase-
money within the time prescribed by law.

An auction-purchaser having paid the purchase-money cannot,
except the sale be reversed by competent authority, demand a
refund of the purchase money, on the ground of not obtaining
possession. The purchase-money must, on completion of the
sale, be considered the property of the judgment-debtor, held
in deposit for the benefit of his creditors, to which the auction-
purchaser can have no claim.

The right of an auction-purchaser to be put in possession is not
rendered void because he has petitioned for a refund of the
purchase-money on the ground of not obtaining possession,
3. Special appellant having purchased certain property at an
execution sale, it is held, in amendment of the judgment of the
lower appellate court, that the property so purchased cannot be
held to be chargeable with arrears of rent due to the proprietor
previous to the sale,

4. In a suit instituted to set aside the sale, made in execu-
tion of a decree, of a mehal composed of two villages, held that
the publication of the advertisement in one out of the two
villages was, under Regulation XLV. of 1793, legally sufficient.
Held also that the same advertisement was also sufficient though
the two villages were successively sold,
5. The sale of a factory, which had been judicially declared li-
able for a debt contracted to carry on its operations, and which
had been. subsequently to the decree, sold privately to the spe-
eial respondents, was sought to be set aside on the ground of
certain irregularities in the conduct of the sale and the absence
of attachment under Regulation II. of 1806.
The judge, in reversal of the decree of the first court, which was
in dismissal of the suit, upset the sale for want of attachment
by beat of drum, and because process had not been issued under
Regulation II. of 1806 in bar of alienation.

Held that the absence of beat of drum was not a "material irregu-
larity" so as to vitiate the sale, and that, the property having
been made, by the decree, liable for the satisfaction of the judg
ment against it, the non-issue of process in bar of alienation
pending suit could not affect the sale.

The judge's order for its reversal was therefore upset,

T

82

259

408

446

602

6. A suit, instituted by special appellants to set aside the
sale of certain property made in execution of a decree, being
dismissed, the point raised in special appeal in support of the
illegality of the sale is that notice of attachment had not been
issued previous to the sale.

Held that, as the notification of sale required by Regula
tion VII. of 1825 is admitted to have been completed, the
failure to publish a notice of attachment similar in terms to the
notification of sale, and on the same site where that notification
was published, is not a material deviation from the provisions
of the law,
7. A suit to set aside the sale of certain property made by a judg-
ment-debtor of plaintiffs, and to cause the sale of the same in
satisfaction of plaintiff's prior decree, dismissed, first, because
from neglect of plaintiff no effective step was taken to stay an
alienation made in favour of a bona fide purchaser; and second-
ly, because the purchase acquired by defendant was substantial
and bona fide,

8. Held that, as the actual amount due under the decree is one
of the particulars required by Clause 2, Section III. Regula-
tion VII. of 1825, to be inserted in the proclamation of sale,
and as the amount inserted in the present instance in the pro-
clamation has never been declared by any court passing a
substantial decree to be due from special appellant, but only
erroneously by a court executing and misinterpreting the
decree of the Privy Council, the requirements of the law have
not been met and the sale cannot stand.

Special appeal decreed, with costs,

9. In case of an adjourned sale, held, firstly, that the zillah
judge had rightly taken the original notices fixing the date of
sale as those with reference to which he had to decide the
question of the validity of the sale.

Held, secondly, that Act IV. of 1846, while it repeals Regulation
XLV. of 1793, provides that the processes for sales in execution
shall be those prescribed by Regulation VII. of 1825. Section
III. of that Regulation requires the proclamation on the spot
where the property is attached to be for 30 days before the
sale; but the written notification in the courts is not required
to be issued for that time.

Held, thirdly, that, if the original notice had been incomplete, no
correctness of the subsequent notice on adjournment would
have sufficed.

Held, further, that, under Act IV. of 1846, all the property
entered in the schedule by the judgment creditor must be sold,
10. Appeal decreed. Held that the collector could only sell
in this case under the authority of the opium agent, and that
authority only required the sale of 2 annas out of 10 annas of
certain property, and the sale was illegal as to all beyond: con-
sequently, whether the collector notified the sale under Act
XII. of 1841, or not, is immaterial,

See Land, Possession of, No. 4.

690

704

899

1056

1665

SALT.

A farmer having been fined under Section XXVII. Act XXIX.
of 1854, the order was reversed. as the zillah judge had failed
to find that the salt-work had been actually in operation ten
days before the illicit salt and implements of manufacture had
been seized by the salt officers,

SECURITY FOR COSTS.

The appeal in a case was dismissed by the zillah judge, as the
appellants, residents of Oude, had not furnished security as
prescribed by Regulation XIV. of 1829.

Held in special appeal, as Oude had ceased to be a foreign territory
about a year and a half before the date of the judge's decision,
Regulation XIV. of 1829 could not apply,

SECURITY BOND.

...

Suit to give effect to a security bond, said to have been exe-
cuted by defendants as sureties for a farmer, dismissed, in
affirmation of the decree of the zillah court, the deed in question
not being established by the evidence,

SECURITY FOR SATISFACTION OF DECREE.

1. Held that, in the case of an appeal to the Privy Council from a
decision of the Sudder Court, security to stay execution can
only be taken by order of the Sudder Court by Regulation XVI.
of 1793,

2. In a suit pending in the zillah court, the judge, at the instance
of plaintiffs, and in consideration of the cause shewn by them,
being of opinion that the defendants would attempt to alienate
the estate sued for, so as to evade the eventual decree that
might be made in plaintiffs' favor, made an order under Clause
2, Section V. Regulation II. of 1806, to divest defendants of
possession of the estate by causing it to be attached through
the collector.

On appeal, it has been held, by a majority of the Court, in adop-
tion of the doctrine of." lis pendens," that the intended aliena-
tion of the estate sued for, by private transfer, after the institu-
tion of the action, does not furnish cause for proceeding under
Clause 1, Section V. Regulation II. of 1806:

And second, by the whole Court, that the mere intended aliena-
tion of the estate does not constitute a ground under Clause 2,
Section V. Regulation II. of 1806, for divesting defendants
of possession, and for appointing a receiver: in order to justify
such a step, it must be shown that the property is likely to
suffer some injury if left in the hands of the party in pos-
session,

SETTLEMENT.

1. The petitioner was considered entitled to retain as ryottee lands
what had before resumption been his malikana lands, the rent
of the land having been by settlement incorporated with the
assets of the village, and malikana being payable in cash,

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634

1583

346

2. Where, on account of the recusancy of the proprietors, the
settlement of a mehal was made with the plaintiff, and the pro-
prietors were allowed malikana, it was held that the plaintiff could
demand rent from the proprietors for lands cultivated by them
as ryots at the same rates as from other ryots, and that, if they
held the land as talookdars, plaintiff was competent to oust them
from all such lands as were not actually cultivated by them as
ryots and make his own arrangements for them. As the deci
sion of the lower court did not distinctly show in what capacity
the defendants claimed to hold the lands, whether as ryots or
talookdars, the case was remanded for the determination of
this point.

Held also that the judge should not interfere to annul the deci-
sion of the lower court in favour of such of the defendants as
have not appealed,

3. Held that, as these suits were instituted essentially for a de-
claration of plaintiffs' right to settlement, with possession and
mesne profits, and as plaintiffs nowhere ask the court to give
them possession as under-tenants, if it is unable to uphold
their claim to settlement, the decision of the principal sudder
ameen, giving to plaintiffs that for which they did not sue, is
erroneous. So much therefore of that decision as declares
plaintiff's entitled to possession as under-tenants and liable to
pay the pergunnah rates, was reversed, and the special appeal
was decreed, with costs,

4. On resumption of a hookamee grant, the settlement was made
with the maliks, and continued in force for five years. It was
subsequently made with the disseised lakhirajdars, who sued the
maliks for wasilat for the five years in question.

Held that, as the maliks had been granted the settlement by
competent authority, the claim to wasilat was invalid. Suit
accordingly dismissed,

886

1018

... 1193

5. Held that, as the judge found that possession had always
been that of the plaintiffs, the owners, and that the lakhiraj-
dars had not been in possession but only received a monthly
payment, he was quite right, under the regulations in force, in
declaring plaintiffs, the owners, entitled to the settlement.
Held also, that the acceptance by the principal sudder ameen of
a petition filed by the plaintiffs in their case after the issues
had been drawn up, was irregular; and as the court below
have arrived at the determination of the case on issues rising
out of the pleadings which must be deemed to set forth
plaintiffs' real claim, no ground, arising out of an inconsistent
statement made in that informal petition, exists for disturbing
the decision of the court below.

Special appeal dismissed, with costs,

See Act IV. of 1840, No. 1.

1542