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setting up the ryots against him, a fresh suit was held not to lie; that the auctionpurchaser ought to have been put in substantial possession in the proceedings had in execution; and that if he himself and the Court had done their respective duties, there would have been no difficulty in putting him in substantial possession, seeing that the defendants could have been physically put out, if necessary. Kristo Gobind Kur v. Gunga Prashad Surma, S. W. R., XXV. 372.

When the order of remand directed the lower Court to ascertain from the settlement chittahs the situation of the lands in dispute, and the chittahs were found not to give the expected information: Held that the Judge should, when the Amin's investigation was objected to, have proceeded and allowed both parties to adduce proofs of their claims.

This procedure should be adopted by one who finds the lands he has purchased in possession of a purchaser from the Collector's Court. Omesh Chunder Roy v. Bibi Asruf-un-nissa, ib. VI. 122.

(a) Where a person in a suit stating that all the interests of the judgment-debtor had been transferred to him, and for several years therefore opposed all attempts on the part of the decree-holder to issue execution:

Held that the person who had so come forward, and had so interfered in the suit, was liable as a defendant, and that execution could be issued against him. A stranger to a suit cannot (even with the decree-holder's consent) so deal with a judgment-debtor as to acquire an interest in the suit which will enable him to oppose and prevent the execution of the decree, without rendering himself liable to be put upon the record as a judgmentdebtor. Lall Parihit Lall v. Musst. Saberun, ib. VII. 368.

The decree-holder should not be referred to a regular suit. Maharaja Dheraj Chunder Bahadur v. Musst. Bibi Nadyr-un nissa, 28; IV. ib. 25.

A Judge investigating without registering and numbering the application as a suit, should be on appeal directed to do so. Mushab v. Shaunuddin Hismuddia, Bom. H. C., IV. A. C. 35.

(b) The widow of a certain person, whose share in an estate was sold and purchased by the decree-holder, sought to guard the share from the effects of the sale by pleading, firstly, that the sale certificate did not correctly describe the share in suit; and, 2ndly, that her husband's share had been conveyed away to her at a period long anterior to the sale: It was held that the establishment of fraud on the part of the decree-holder

prevents his recovering anything, but the existence of fraud in his dealings must be found as a fact in the case, and cannot be assumed; and where a sale certificate is correct as to any part of the description of the subject of sale, and can be used to identify it, with the assistance of extraneous evidence, should be received to show what was intended to be dealt with. Musst. Maleebun v. Musst. Raseeda, S. W. R., XXV. 401.

In claims arising under sec. 38, there is nothing to prevent the" claimants" from questioning the legality of the decreeholder against the judgment-debtor, Muhammad Ali Khan v. Kalunder Ali Khan, N.-W. P. 1872, 81.

(c) To entitle a party to come in under this section by petition, and have his case tried in like manner as if he had paid in full stamp duty on a regular plaint, he must prove that he was in possession of the land in suit, and was dispossessed by another party, alleging the land to form part of land decreed to him. Madhub Dutt v. Radha Mohun, S W. R., III. 205.

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The suit cannot be tried as a regular suit without a proper plaint and stamp unless plaintiffs or petitioners complain of actual ouster. Ruttun Kooer, v. Syad Sudut Hosein, ib. XXII. 123.

66

(d) An objector who does not claim to be in possession on his own account, or on account of some person other than the defendant," but whose sole ground of intervention is that he holds a bona fide title derived from the defendant, is not entitled to be heard. Eusuf Ali Khan v. Shib Shunkur Suhaye; Kurim Buksh v. Shib Shunker Suhaye, ib. 1864, 384. D. having sued to recover possession of certain lands, P. intervened, and D.'s claim was decreed without prejudice to P.'s rights. In execution of that decree, D. took possession, and thereupon P. applied to be heard under this section: Held that having been a party to the decree, P. had no remedy under that law. Ramgopal Chuckerbutty v. Poornochunder Banerjee, ib. XII. 475.

Where plaintiff affirmed that he was in possession and sued to have his rights affirmed: Held that as plaintiff was not dispossessed, he had no cause of action, and that he was not entitled to be heard; nor had the Court jurisdiction to hear and determine his cause under the extraordinary provisions of that section. Kalee Narain Singh v. Protapchunder Burooah, ib. 231.

A party dispossessed of land under colour of a decree to which he was not a party, applying to a Judge, is entitled to an investigation, and, if his title is estab

See p. 225.

other place which the local Government may appoint for the confinement of persons ordered to be imprisoned by the Courts of such district:

Arrest in houses.

Provided that no house shall be entered* (9) after sunset and before sunrise for the purpose of making an arrest under this section: Provided also that when the decree in execution of which a judgment-debtor is arrested is a decree for money and the judgmentdebtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

Proviso.

The local Government may, by notification published in the official Gazette, direct that whenever a judgment-debtor is arrested in execution of a decree for money and brought before the Court under this section, the Court shall inform him that he may apply under chapter XX. to be declared an insolvent, and that he will be discharged if he has not commited any act of bad faith regarding the subject of his application, and if he places all his property in possession of a receiver appointed by the Court.

If after such publication the judgment-debtor express his intention so to apply, and if he furnish sufficient security that he will appear when called upon, and that he will within one month apply under section 344 to be declared an insolvent, the Court shall release him from arrest:

but if he fail so to apply, the Court may either direct the security to be realised or comniit him to jail in execution of the decree.

M. 337. Every warrant for the arrest of the judgment

Warrant for arrest to direct judgment-debtor to be brought

up.

debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay together with the interest thereon, and the costs, if any, to which he is liable, be sooner paid.

Scale of subsistence al-
lowances.

the subsistence of
M. 339. (276).

M. 338. The local Government may from time to time prescribe scales, graduated according to rank, race, and nationality, of monthly allowances payable for (h) judgment-debtors. Nojudgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as, having regard to the scales so fixed, the Judge thinks sufficient for the subsistence of the judgment-debtor from his arrest until he can be brought before the Court.

Judgment-debtor's subaistence money.

lished, to a decree.

Hussun Ali v. Naib
Ahmad and another, S. W. R., XI. 146.
Plaintiff claimed under a deed of sale from.
A. (a purchaser from C. and D.) dated 11th
November 1860, and alleged that he pur-
chased for valuable consideration and without
notice of any other claim. Defendant as-
serted that plaintiff purchased fraudulently
with notice of her late husband's right of
purchase. It appeared that defendant's
husband had sued C. D. and others to en-
force a lien upon the mutah, and obtained
a judgment of the Privy Council uphold-
ing his lien, and declaring its priority over
the purchases of C. and D. This suit was
pending before the Privy Council at date
of plaintiff's purchase. In 1862 defen-
dant's husband sued C. and D. for specific
performance of an alleged agreement for
sale, dated October 1851, without adduc-
ing any evidence as to the existence of the
agreement, and got a decree in his favor
because the principal Sadar Amin had said
in the original case that C. and D. had
agreed to sell the mutah. The present
plaintiff was turned out of possession under
this decree, to the proceedings in which he
had in vain sought to get made a party,
on the ground that he was affected by
notice of the former proceedings.
He sought relief under this section, but his
application was dismissed, and he then com-
Imenced this suit. The Civil Judge decid-
ed in favor of plaintiff; it was held, confirm-
ing the decree of the lower Court, that
this was a case of a vendee of property,
perhaps subject to a lien, turned out upon
a decree against other people declaring the
holder of the lien the owner of the proper-
ty, and that the ejectment was wrongful,
and procured by a gross misuse of the
Court's process.

Parties seeking specific performance of a con-
tract should come to the Court for relief
within a reasonable time. Mrs. Maria
Varden eth Sam v. Appundi Ibrahim Saih,
M. H. C. R., VI. 75.
Held that a mortgagee whose bond was
registered was entitled to recover pos-
session of the mortgaged land of which
he had been dispossessed under a decree
obtained against his mortgagor by ano-
ther mortgagee, whose mortgage bond
had been subsequently registered, on con-
dition that he satisfied the claim of the
decree-holder; otherwise the defendant
to be entitled to possession on his satis-
fying the plaintiff's mortgage claim.
Bhikaji et al v. Vallabhdas et al, Bom.
Rep., II. 216.

(e) A person who has parted with actual oc-
cupation of land to another is not thereby,
as an absolute rule. without restriction
barred from taking advantage of this
section, Beni Madhab Dutt v. L. Mo-

* See however case of Govind

zoomdar. S. W. R., XXII. 123. This section is applicable to the case of a person who, though personally the defendant in the original suit, was legally other than the defendant as regards the particular portion of land in dispute in execution.

Where an Amin was appointed to measure and give possession of land in execution of a decree, the one month allowed for preferring a claim under that section must be calculated from the date when the Amin gave over possession, and not from the date of his final report. Kasheenath Doss v. Bhowanee Dossee, ib. 1864, Miss. 18.

An application brought by a person dispossessed in execution of a decree (under Act XIV. 1859, sec. 15) against a third party, can apply under this section to recover, and no stamp is necessary on the application. Brahma Maye Debi v. Sarkat Sirdar, B. L. R., IV 94.* Where the applicant gave proof of his title to one-third of certain property, but showed that he had been actually ousted only from certain rooms in a house upon it, it was held that he could not, under the provisions of this section, be put in possession of more than that part of the house from which he had been ousted. That, in this point of view, the operation of this section is to effect a restitution, but without prejudice to the establishment of the applicant's right to a larger portion by means of a regular suit. Sreenath Doss v. Gopeenath Doss, (A manuscript case quoted by Broughton. Nov. 27th, 1865.) Petitioner bought a patnidar's right at a sale in execution, and afterwards, in a regular suit, got a decree against certain objectors. In executing these decrees, he was met by an objection alleging dar-patni right. Held, that this case was rightly treated under this section by allowing the rights of the dar-patnidar. Judub Charun Thakur v. Bholenath Roy, Wym. Rep. I. 351.

A landlord is in possession of land held by his tenants paying him rent, and if symbolical possession be given to any one else by planting a bamboo and proclamation under sec 201, he can come in under this section. Collector of Bograh v. Kristo udor Roy, S. W. R., II. 191.

In a case under sec. 332, the Court is not restricted to try the question of possession merely; but if satisfied that there was a probable ground for the application of the applicant (plaintiff), should also go into the question of title between the applicant and the decree-holder (defendant).

Chandra Bagdee, p. 221,

* See p. 227,

When a judgment-debtor is committed to jail in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the said scales, or where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs.

The monthly allowance fixed by the Court shall be supplied by the party on whose application the decree has been executed to the proper officer of the Court by monthly payments in advance before the first day of each month.

The first payment shall be made for such portion of the current month as remains unexpired before the judgmentdebtor is committed to jail.

M. 340. (279) Sums disbursed by the decree-holder for the subsistence of the judgmentdebtor in jail shall be deemed to be costs on the suit:

Subsistence money to be added to amount of decree.

Provided that the judgment-debtor shall not be detained in jail or arrested on account of any sum so disbursed.

M, 341. (278, 282) The judgRelease of judgment- ment-debtor shall be discharged from jail,

debtor.

(a) on the decree being fully satisfied, or

(b)

(c)

at the request of the person on whose application he has been imprisoned, or

on such person omitting* (i) to pay the allowance as herein before directed, or

(d) if the judgment-debtor be declared an insolvent, as hereinafter provided, or

(e) when the term of his imprisonment as limited by section 342 is fulfilled :

Provided that in the first, second, third, and fourth cases mentioned in this section the judgment-debtor shall not be discharged without the order of the Court.

A judgment-debtor discharged under this section is not thereby discharged from his debt, but he cannot be re-arrested under the decree in execution of which he was imprisoned. 342. No person shall be impriImprisonment not to exceed soned in execution of a decree for a longer period than six months; or for a longer period than six weeks if the decree When not to exceed six be for money not exceeding fifty rupees.

six months.

weeks.

Endorsement on warrant,

343. The officer entrusted with the execution of the warrant shall endorse thereupon the day on, and the manner in, which it was executed; and if the latest day specified in the warrant for the return thereof has been exceeded, the reason of the delay, or if it was not executed,

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Although the Court in such a case has the power to go into the question of title, a person who has been dispossessed of land or fisheries in execution of a decree against a third person not a party to the case, is not bound to prove anything more than that he was really and bonâ fide in possession, and dispossessed in execution of the decree; and though the decree-holder can put the plaintiff to proof of his title, he cannot insist upon direct proof of title from the plaintiff who may rely upon his possession; the decree-holder may go into evidence of title in himself. Radha Peari Dabee Chaudhrain V. Nobin Chandra Chaudhri, S. W. R., XIII. 80 (F. B.)

The Full Bench ruling is equally appli-
cable to a case under sec. 331. Meer Ab-
doos Sobhan v. Brahma Deo Narain, ib.
XIV. 140.

The person dispossessed of immoveable pro-
perty who disputes the right of the decree-
holder to be put into possession of such
property, must not only show possession,
but the question of title should also be
enquired into. Nagendur Chunder Ghose
v. Ram Comul Mundul, ib. III.213.
The real question to be tried is, whether
the objector has a better right to the
property in dispute than the decree-hol-
der. Musst. Sheero Coomaree Dabee v.
Keshur Chunder Bose, Ind. Jur., N.
8., I. 188.

This section does not refer to decrees ob-
tained in possessory actions, but to exe-
cutions in regular suits, where judgments
have been pronounced on the merits, and
cannot be introduced into a case deter-
mined under sec. 15, Act XIV. of 1859.
Gobind Chandra Bagdee v. Gobind Ghose
Mundul, ib. VII. 171.

Four persons made separate applications to the Court, alleging that the defendant having obtained a decree against Government for possession of fisheries in a suit to which they were no parties, had in execution dispossessed them of fisheries of which they were severally in possession. On enquiry it appeared that each and several of the four applicants claimed possession of the same portions of the fisheries. The lower Court, holding that it was impossible for each of several parties setting up adverse claims to same property to show that it had been bonâ fide in his possession, and that he had been dispossessed from it, referred all parties to a regular suit: Held that the Judge should have tried each case by itself as between the applicant and the decree-holder. Saradamayi Chaudhrain v. Nobin Chundra Roy Chaudhri, B. L. R. A. C., II. 333; S. W. R., XI. 255 Enquiry has been made when a Judge looks

into the circumstances of a case with reference to the relative rights of the parties, and comes to the conclusion that he cannot refuse possession to the judg ment purchaser. Huro Parshad Roy. Chaudhri v. R. M. Malia, S. W. R., XXIV. 461.

The onus will rest upon a shareholder who has been dispossessed by another shareholder in execution of his decree, and who alleges that the jalkar had been part of their joint mahal, and that on partition it had been left ijmali. Udai Tara Chaudhrain v. Khaja Abdul Ghani, B. L. R., III., App. 90.

The Court is bound to go into the question of the validity of a mortgage against persons who, in execution of a decree, dispossess a mortgagee, when such holding is found. Baboo Jadunath Singh v. Kali Parshad, ib. VI, 55.

In Bengal the possession of a dar-patnidar, if established by a decree in enquiry under this section, cannot be disputed except by a regular suit, in which the existence and validity of a makarari tenure, and the right of the makararidar to khas possession, are the issues to be tried. Shero Kumaree Debi v, Keshub Chunder Bose, ib. VIII. 131.

The

(e) The applicant has a clear calendar month
exclusive of the day of dispossession.
Dadee V. A. S. v. Balgonda B Shankerapp
Bom. H. C. A. C., I. 39.
Court cannot extend this period. Dewan
Ali v. Mansur Ali, ib. XI. 259; Baboo
Onokool Mukarji v. Roy Baroda Kant, S.
W. R., XII. 467.

This section does not limit applicant to
any particular manner of obtaining_pos-
session. Obhoya Charan Dey v. R. C.
Ghose, ib. XXII. 406.

A frequent objection in India is founded
upon benami tenure. With reference to
this class of tenure, the Privy Council
remark as follows:-

"In so far as the practice of holding lands
and buying lands in the name of another
exists, that practice exists in India as
much among Muhammadans as among
Hindus, and the judgment in Goopee
krist Gosain v. Gungapersaud Gosain
(VI. 53), and the cases therein re-
ferred to are, at all events, authority
for the propositions that the criterion of
these cases in India is to consider from
what sources the purchase-money comes
That the presumption is, that purchases
made with the money of A. in the name
of B. are for the benefit of A.
from the purchase by a father, whether
Muhammadan or Hindu, in the name of
his son, you are not at liberty to draw
the presumption which the English law
would draw, of an advancement in

*See however case of Brahma Moye Debi, on p. 219,

That

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