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it certain proceedings were taken. Among others a report was called for
from the office as regards the property sought to be sold, and the pleader
for the decree-holder was required to file an affidavit as to whether the
property to be sold wa.s or was not ancestral property of judgment-debtor.
A considerable period of time passed without anything being done, and
on the 18th March 1884, the following order was made on the second
application of the 29th January 1883 :

.First Appeal, No. 89 of 1888 from a decree of Babu Abinash Chandra Banerji,
Subordinate7udge of Aligarh, dated the 28th May 1838.

35fi



YII]



SHER SINGH V. DAYA BAM



13 All. 567



" The pleader for the docree- holder stated that his client does not wish
to prosecute the case further, it is therefore ordered that ib be
dismissed for default."

On the 20th March 1884, the third application was put in, and by
his petition the decree- bolder sought for sale of the property mortgaged.
Oa the 13th May 1884, notification of sale was issued, fixing the 21st
July 1884, but the judgment-debtors got time for the payment of the
amount of the decree and the sale was postponed. Subsequently fresh
notices of sale were issued for the 20fch September 1884, when one Kalyan
Das put in an objection an'd asked that one of the properties notified for
sale should be sold first, to which the decree-holder, on the 20th November
1884, agreed. On the 5fch February 1885, the sale of that property was
trasferrec? to the Collector, as it was considered that such property was
the ancestral property of the judgment-debtor.

With regard to this application and what was done upon it I may
say that it was a real application, according to law, accepted by the Court
below, and, as the judgment-debtors were cited, they had an opportunity
of being heard and of offering and setting up any [566] objections
that they might be in a position to prefer to the execution of the decree,
amongst them, of contending that the order, dated the 18th March 1884,
was a bar to the Court's entertaining the application of the 20ih March
1884. No such objection was ever taken, and the very same remarks apply
to the application of the 28th May 1886, by which the decree-holder
applied for the sale of the mortgaged propercy. On the 5th June 1886,
notice was issued to the judgment- debtors to show cause why the sale
should not take place. They did not appear, but two persons, one of them
Karan Singh, did appear, and upon his application the proceedings were
struck off.as will be seen by an order of the Subordinate Judge of Aligarh
dated the 28th July 1886, which is in the following terms :

" This date was fixed for the hearing of this case. A regular suit has,
however, been instituted by Karan Singh. The number of that suit is 141
of 1886. An order has been passed in the said suit for postponement of
the sale. No further proceedings can therefore be taken."

The case was then struck off. That order got rid of the application
of the 28th May 1886, and on the 9th January 1888, the application with
which we are concerned in the present appeal was put in by the decree-
holder for the sale of the mortgaged property, and the learned Subordinate
Judge has allowed the decree-holder to execute the decree. Two objections
are urged by the judgment-debtors before us as to the propriety of that
order. The first of these is that looking to the terms of the former order,
dated the 18th March 1884, the principle of the case of Sarju Prasad and
the subsequent rulings of this Court, which adopted and followed it, as set
out in the Full Bench ruling, should be applied, and we should hold that
that order was a bar to all the subsequent applications that were made,
and was a fatal impediment to the decree-holder's subsequent application.
The second point urged by the learned counsel for the appellant is that
the execution should have been transferred to the Eevenue Court, the
property attached being the ancestral property of the [567] judgment-
debtors, and this may be disposed of at once. No such question appears
to have been raised before the Court below, nor are there any materials
upon this record to guide us in forming an opinion upon it. All I can say
is that the Court which has the conduct of the proceedings in execution,
that is, the Court below, may, at the instance of the judgment-debtors, if

357,



1391

APRIL 30.

APPEL-
LATE
CIVIL.

13 A. 56* =
11 A.W.N.
(1891) 164.



13 All. 568 INDIAN DECISIONS, NEW SERIES [Yol.

1891 proper materials are placed before it, hereafter decide this question accord-
APRIL 30. i Q 6 to 1 &W aQ d make such order as appears proper and right.

~ The first point referred to above is one of great importance, and in

APPEL- O rder to guard against any possible confusion or misunderstanding as to

LATE the means upon wbioh it is in this particular case decided, I think it

ClVlL. necessary to explain the grounds upon which I come to the conclusion I

_ have. In my opinion the principle laid down in Bam Kirpal v. Rup Kuari(l)

13 A. 564= prohibits me from going behind a formal application for execution of a
I A.W.N. d ecree admitted by a Court executing a decree, in which notice has been
(1891) 164. iggued to the judgment-debtors and proceedings from time to time have
been taken thereunder in execution of that decree. I concede that the decree-
holder in the case might be in a difficulty if the judgment-debtor could go
behind the proceedings which were instituted by the application of the 20fch
March 1884. Bub in my opinion the judgment-debtor cannot do so. I have
already stated and I need not repeat all that was done upon that application.
What I wish to emphasiza now is that it was a real and substantial pro-
ceeding taken by the Court at the instance of the decree-holder, to which
the judgment-debtors were made parties, in which orders were made which
could only have been made by the Court upon the assumption that what
had hitherto been done had been properly done and according to law. Ic
seems to ma that the objection on the score of s. 373 of the CJode of Civil
Procedure cannot be gone into in the present case, and that the argument
for the judgment-debtors cannot prevail. I hold therefore that the learn-
ed Subordinate Judge was right in the conclusion at which he arrived,
though I wish to add this much in regard to the application of the 28th
May 1886, that considering the nature of the final order passed in that
proceeding it would not, having regard [568] to what was laid 'down in
the case of Fakirullah v. Thakur Prasad (2), have acted as a bar within
the meaning of s. 373 of the Code of Civil Procedure. The order then
made was an order by the Court of its own motion in reference to a suit
then pending on its own file in which it had already issued an injunction
restraining the execution proceedings.

I dismiss the appeal with costs.

MAHMOOD, J. I am entirely of the same opinion. My brother
Straight has aleady stated that the rule laid down in the Fall Bench case-
of Radha Gharan v. Man Singh (3) approving an earlier ruling of this very
Bench is not to ba shaken in its authority or in its application. My
brother has also said that, so far as the order of the 28th July 1886, strik-
ing off the application for execution dated the 28th May 1886, made by
the Subordinate Judge of Aligarh, is concerned, the ruling of Fakirullah v.
Thakur Prasad (2) does not govern this case. That proceeding is therefore
of no value to either party for the purposes of barring any application for
execution of the decree.

And moreover the important point upon which I entirely concur
with my brother Straight is the principle of not going behind a proceeding
in execution which has already been taken to be valid. This rule is
contemplated not only by the case of Ram Kirpal v. Rup Kuari (1) and
Mungul Parshad Dichit v. Girja Kant Lahiri (4), but also by the general
prinoioles laid down by their Lordships in the Privy Council in the case
of T.R. Arunacheliam Chetti v. V.R.R.MA.R. Arunachellam Chetti (5),
I hava considered it necessary to say this because there are some

(1) 6 A. 269. (2) 13 A. 179. (3) 12 A. 392. (4) 8 C. 51,

(5) 15 I. A. 171.

358



YII] ILAHI BAKHSH V. BAIJ NATH 13 All. 570

cases now pending in this Court which have been referred by me to a 1891

Bench of two Judges for the decision of this very question, and I may APRIL 30,

add that the view of the law now taken by my brother Straight and

myself is in accord with the suggestion which I made in delivering my APPEL-

judgment in Badri Nath Misr v. Bam Rup Singh (l). LATE

Appeal dismissed, CIVIL.



ISA. 369 = 11 A.W.N. (1891) 156.
[569] APPELLATE CIVIL.
Before Mr. Justice Mahmood.



ILAHI BAKHSH AND ANOTHER (Decree-holders) v. BAIJ NATH
(Judgment-debtor)* [2nd June, 1891.]

Execution of decree Default of purchaser ct silt ii execution Deficiency in price
arising on re sah Order against defaulter to make good such deficiency No ajpzal
from such order Civil Procedura Cod}, ss. 2, '293, 540, 588.

No appeil lies from an order under s.293 of tha Code of Civil Procedure
directing a defaulting purchaser at a s*la in execution of a decree to make good
the loss happening on a re sale occasioned hv bis default, Soudagar Mai v.
Abiul Rahman Khan (2) and Tapesri L&l v. Deckinandan Rai (3) followed.

THE facts of this case sufficiently appear from the judgment of
Mahmood, 3.

Pandit Moti Lai, for tha appellants.
Mr. D. Banerji, for the respondent.

JUDGMENT:

MAHMOOD, J. Upon the case being called on for hearing Mr.
Dwarka Nath Banerji for the respondent takes a preliminary objection to
the effect that the appeal does not lie, and in order to render the objection
and the grounds upon which it proceeds intelligible, it is necessary to state
the following facts :

OQ the 24th January 1880, ona Jogal Kishora obtained a decree for
recovery of Rs. 11,583-0-9, against the present appellants, Ilahi Bakhsh
and Rahim Bakhsh, by enforcement of lien against certain immoveable
property belonging to them.

In execution of the abovementioned decree mauza Dharampur was
sold by auction on the 20iih June 1882, when the present respondent,
Baij Natb, made a bid of R?. 7,500, and deposited one-fourth of the price
in Court as required bylaw. He, however, failed to deposit the three-
fourths of the sale-money within the pariod of fifteen days, and the result
was that the auction-sale of the 20;h June 1882, stood as annulled.

On the 20ih November 1883, the same property was brought to
sale, by auction for the second time, and upon this occasion two
[570] persons, Ghulam Ahmad and Ghias-ud-din, purchased it in lieu of
Ks. 6,665, that is to say, for a sum which fell short of Baij Nath's bid of
the 20bh June 1882, by Rs. 835.

Matters stood thus, when on the 19ih November 1886,Bahim Bakhsh
and Ilahi Bakhsh aforesaid applied to the Court for recovery of Rs. 835

First, Appeal, No. 182 of 1890, from an order of Babu Mata Prasad, Subordinate
Judge of Bareilly, dated the 9th June 1890.

(1) 10 A.W.N. (1890) 9. (a) 10 A.W.N. (1890) 85. - (3) 10 A.W.N. (1890) 89.

359



1.3 All 371



INDIAN DECISIONS, NEW SERIES



[Yol.



1891

JUNE 2.

APPEL-
LATE
CIVIL.

ISA. 569 =

11 A.WN.
(1891) 156.



from the defaulting bidder Baij Nath, present respondent. This application
purported to have been made under s. 293 of the Code of Civil Procedure,
and, upon the application having been made, Baij Nath, respondent,
preferred objections, but his objections were disallowed, and on the 8bh
January 1887, the subordinate Judge made an order that the sum of
Es. 835 was to be paid to them by Baij Nath.

It appears then that on the same day, namely, the 8th January 1887,
Jogal Kishore, the bolder of the decree of the 24th July 1880, applied
for attachment of the sum of Es. 835 in the hands of th respondent,
Baij Nath. The attachment; was actually made on the 14tb January
1887, and it seems thab subsequent to the attachment the decree-holder;
Jogal Kisbore, sold the decree to one Eaghubar Dyal, who is no party to
this litigation.

On the 1st December 1880, the respondent, Baij Nath, paid the sum
of Es. 835 to Eaghubar Dyal,- the abovementioned purchaser of the
decree.

On the 4th January 1890, the abovementioned Ilahi Bakhsh and
Eahim Bakhsh applied to the Subordinate Judge to execute bis order of
the 8th January 1887, with the object of recovering Es. 835 from Baij
Nath, respondent. Baij Nath thereupon objected to the execution upon
the ground that he had already paid the sum of Es. 835 to Eaghubar
Dyal, and was therefore no longer liable to pay to Ilahi Bakhsh and Eahim
Baksh. These objections were allowed on the 9fch June, 1890.

It is from this order that this first appeal has been preferred, and
Mr. Dwarlca Nath Banerji contends that inasmuch as the order must be
taken to have been one made. under the provisions of s. 293 of the Code of
Civil Procedure, and inasmuch as Baij Nath, respon-[57l]dent here,
was no party to the original decree of the 24bh January 1880, the order
which is the subject of appeal is not such an order as can be called a
decree either in the regular sense of the terms as understood in the regular
suit, or a decree within the explanation of it in s. 2 of the Code of
Civil Procedure, and therefore no first appeal could lie under s. 540 of
the Code. Mr. Dwarka Nath Banerji in support of his contention has
relied upon Soudagar Mai v. Abdtil Rahman Khan U), in which the
learned Chief Justice and Mr. Justice Brodhurst concurred in holding
that no appeal lies from an order under s. 293 of the Code of Civil Proce-
dure for recovery from a defaulting purchaser of a deficiency of price hap-
pening on a re-sale of the property, such order not being a "decree" within
the meaning of s. 2 of the Code. This view of the law was followed by
my brother Tyrrell in Tapesri Lai v. Deoki llandan Bai (2).

In. view of these two rulings Mr. Moti Lai frankly concedes that he
cannot support the appeal so far as the preliminary objection is concerned.
Following the principle of the rulings cited I hold that no appeal lies,
and I dismiss the appeal with costs,

Appeal dismissed.



(1) 10 A. W. N. (1890) 85.



(2) 10 A. W. N. .(1890) 89.



360



YII]



NATHAN V. KAMLA KUAR



13 All. 573



131.871 = 11 A.W.N. (1891) 167.

EEyiSIONAL CIVIL.
Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Knox.



NATHAN AND OTHEKS (Defendants) v. KAMLA KUAR AND ANOTHER
(Plaintifis).* [26th June, 1891.]

Landholder ani tenant Suit far possession cffMen wocd of self-sown trees growing OK.
an cccupincii hoi ii>ig Burien of froof.

A z^uiind^r claiming a right to the fallen wood of self-sown trees which h<*d
been growing on an oc-oupincy-holding must prove some oustom or contract by
which he is entitled to take such wood. Tbe English law as to ownership under
similar circumstances cannot be applied, and (sed qucere) there is no general
rule in India to decide that there is a right in the landlord or a right in the
tenant by general oustom to the fallen wood of self-sown trees.

[572] THIS was a reference from the District Judge of Saharanpur
for decision of the following question : " Does the burden of proving the
right to fallen wood in the case of self-grown trees in an occupancy tenant's
holding fall on the landlord or on the tenant?" The facts out of which
the refence arose are sufficiently stated in the judgment of the Court.

The Hon'ble Mr. Spankie, for the appellants.

Pandit Ajudhia Nath and Munshi Ram Prasad, for the respondents.

JUDGMENT.

EDGF, C. J., and KNOX, J. This is a reference by the late Officiating
Judge of Saharanpur. The plaintiffs were zemidars. The defendants were
two occupancy tenants of the plaintiffs. The plaintiffs brought this suit
alleging a right to the fallen wood of a pipal tree, which, as we gather from
the reference, had grown within the occupancy holding of the defendants.
It is stated, and we must take it to be the fact, that the tree was not planted
by the Z3mindara or by the tenants, and that it was a self-planted trea.
The question which we are asked is, does the burden of proving the right
to fallen wood in the case of self-grown trees in an occupancy tenant's
holding fall on the landlord or on the tenant?" We have been referred
to several authorities, but none of them appears to us to apply fco a case
like this. The case of Daoki Nandan v. Dhian Singh (1) does not apply.
That was a case in which the landlord claimed a right to cut down and
remove fruit-bearing trees which were growing on his tenant's holding.
That, apart from special custom or contract, he clearly could not have a
right to do. The other cases do not relate to self-grown wood. On behalf
of the tenants Mr. Spankie has contended that they had the right not only
to take the fallen wood of self-grown trees but to prevent such trees grow-
ing. We certainly think that a tenant would clearly be entitled to prevent
the growth of any trees which were not growing at the time of the com-
mencement of his tenancy, and the growth of which would interfere
with the purpose for which the land was let to him, provided, that
there was no custom or contract [573] to the contrary. However,
that does not assist us to answer this question. We are not aware of any
authority in India which enables us to decide that there is a right in the
landlord or a right in the tenant by general custom to the fallen wood of

Miscellaneous Application No. 128 of 1890, under s. 617 of the Civil Procedure
CoJe, with a reference by H. B. Punnett, Esq., District Judge of Saharanpur, dated
the 5th August 1890,

(1) 8 A. 467.



1891

JUNE 26.

BEVI-

SIONAL

CIVIL.

ISA. 571 =
11 A.W.N.
(1891) 167.



A VII 46



361



13 All. 574



INDIAN DECISIONS, NEW SERIES



[Vol.



1891

JUNE 26.

EEVI-

SIONAL

CIVIL.

13 A. 571 =
11 A.W.M.

(1891) 167.



self-grown trees. In our opinion a person who brings his suit, claiming
that the fallen timber of self-grown trees, within an occupancy-holding
belongs to him must prove his right by showing a general custom of the
district, a particular custom of the village, of a contract which gives him
the right. In this case there was a wajib-ul-arz. The learned Officiating
District Judge did not consider that the wajib-ul-arz could be treated as
satisfactory evidence. We do not intend to decide whether it can or not,
but we merely point out that it was a ivajib-ul-arz made as loog ago as
1867, and that it should ba a question possibly for the consideration of the
District Judge what effect should ba given to the loajib-ul-arz if he found
that it had been acted uooa and the correctness of it had not been disputed
until quite recently. We ought to say, as our opinion ia invited on the
point, that the law in England relating to fallen timber could not, in our
opinion, be accepted as evidence of custom or representing what the law
is in India on this point.

The papers will be returned to the District Judge of Sabaranpur with
the answer which we have given.



13 A. 573 = 11 A. W.N, (1891)157.

APPELLATE CIVIL.
Before Sir John Edge, Kt. t Chief Justice, and Mr. Justice Knox.



KADHA KISHEN AND OTHERS (Defendants) v. RAJ KQAR (Plaintiff)*

[15th July, 1891.]

Justice and equity and good conscience Succession to out-casted Brahmin Brothers
of deceased remaining in casti Sons of dicea'd by Binii wldjw.

Khuman, a Brahmin, lived with a Btnia widow, for which offence he was
outcasted. He left his family and bis village and went to live elsewhere, taking
the widow with him. He had sons by her, and he and his family lived as
cultivators and acquired property. Khuman Idied iu his new home and left the
widow and their sons [374] in possession of the property which he bad acquired.
This being BO, the brothers of the deceased Khutnin sold the property which had
been thus acquired by nim to one R. K. R. E. thereupon suoi his vendors and
the surviving sons of Ebuman by the widow, together with their mother and
the widow of a deceased son for recovery of the property:

Held that the sons of Khuman by the Bania widow with whom he had been
living and their mother were entitled to remain in possession of the property
acquired by Khuman as against the brothers of deceased who had remained in
caste

THE facts of this case, ara sufficiently stated in the judgment of the
Court.

Pandit Ajudhia Nath, for the appellants.

The Hon'ble Mr. Spankie, for the respondents.

JUDGMENT.

EDGE, C. J., and KNOX, J. This was a suit to recover possession
of certain zamindari property, some houses and bonds and other property,
from the surviving sons of one Khuman, the mother of those sons and
the widow of a deceased son. The other defendants are brothers of Khuman,
who sold to the plaintiff. The facts of the case are peculiar. Khuaaan



Second Appeal No. 84 of 1889, from a decree of W. H Hudson, Esq., 'District
Judge of Farakhabad, dated the 24th September 1888, reversing a decree of Rai Ishir
Prasad, Subordinate Judge of Parakhaba 1, dated the 22nd August, 1838.

362



YII] JWALA PRASAD V. SALIG RAM 13 All. 575

was a Brahmin, and, having taken a Bania widow to live with him, was 1891
outcasto^. He lefb his village, removed to another village, and there lived JULY 15.

with the Bania widow. In course of time she bore children to him, the

eldest of whom is now thirty-five years old. She and her sons and the APPEL-
widow of one of the sons are the first lot of defendants to whom we have LATE
referred. Khuman and his sons, as we infer from the judgment of the
lower appellate Court, carried on cultivation together, and Khuman,
according to the finding of the lower Court, acquired the property in dis- 13 i. 573 =
pute in .this suit. It has been found by the first Court that the plaintiff 11 S.W.N.
paid no consideation whatever for the sale to him. That finding is not (1891) 137.
dissented from in the judgment upon which the decree under appeal was
founded. The Judge below gave the plaintiff a decree for possession.
Against that decree this appeal has been brought.

Wa have been referred to texts from Manu, to passages from
West and Buhler and to several authorities, and none of them seem
to us precisely to govern this case. We have here a case of the
illegitimate offspring of parents who belonged to the twice-born
clashes of Hindus, the father being a Brahmin, the mother a Bania.
[575] We have also to deal with a case in which the property in dispute,
which is in the possession of the offspring of those parents was, according
to the finding of the lower appellate Court, which we must accept, the
self-acquired property of Khuman, after he had been outcasted, after he
had lefb his family and his village and had started [in another village to
make a livelihood for himself, the woman who lived with him and their
children. If we were trying this case as a Court of first instance, or as a
Court of first appeal, we should come to the conclusion that Khuman
having lost bis caste, had started a separate family altogether ; separate,
that is : in the sense of total and absolute separation from the family of his
birth and his caste-fellows. We cannot find amongst the authorities and
texts cited to us any sure principle to guide us in this case. Under these
circumstances we must act on the principles of equity and good conscience
and decline to oust from the possession of the property acquired by
Khuman, his sons, and their mother and the widow of the deceased sort
for the benefit: of the vendee of brothers who were no'parties to the acqui-
sition of any portion of this property, and which was not acquired by any
ancestor of theirs. This is a very peculiar case, and the view we take of it-
might be absolutely inapplicable in other cases ; but, holding the opinion
which we do as to what good conscience dictates, in the present case we
allow the appeal with costs, and dismiss the suit with costs.

Appeal allowed.



13 A. 575 = 11 A.W.N. (1891) 158.

APPELLATE CIVIL.
Before Sir John Edge, Kt , Chief Justice, and Mr. Justice Straight.



JWALA PfiASAD (Plaintiff] v. SALIG RAM (Defendant).*

[20th July, 1891.]

Jurisdiction Civil and Revenue Court* Appeal Erroneous extrelse cf jurisdiction by
subordinate Court capable of being made a ground of appeal to the High Court.

Where the High Court is the Court of appeal from any particular subordinate
Court, and that Court acts without jurisdiction in the trial oi a suit or an appeal

* Appeal No. 1 of 1891 under BeotionjlO o! the Letters Patent.
363



13 All. 676



INDIAN DECISIONS, NEW SERIES



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 55 of 155)