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Buddhu Misir and Others Vs Bhagirathi Kunwar

Date of Decision: July 25, 1917

Acts Referred: Civil Procedure Code, 1908 (CPC) — Order 21 Rule 95, 146

Citation: AIR 1918 All 405 : (1918) ILR (All) 216

Hon'ble Judges: Tudball, J; Pramada Charan Banerji, J

Bench: Division Bench

Final Decision: Disposed Of

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Judgement

Pramada Charan Banerji and Tudball, JJ.@mdashThe facts out of which this application for revision arises are these:---In execution of a decree

held by Buddhu Misir and others, the present applicants, the property of the judgement-debtor was sold by auction and was purchased by one

Sukh Narain. The auction-purchaser sold the property purchased by him to the decree-holders. The decree-holders purchasers applied for

delivery of possession under Order XXI, Rule 95, of the Code of Civil Procedure. The court of first instance granted their application, An appeal

was preferred to the District Judge and he held that the applicants for possession, who were purchasers from the auction-purchaser, were not

entitled to make an application under Order XXI, Rule 95, and accordingly set aside the order of the court of first instance. From this order of the

learned District Judge the present application for revision has been preferred, and it is contended that the learned Judge had no jurisdiction to

entertain an appeal from the order of the court of first instance. The contention is fully supported by the ruling of the Full Bench in the case of

Bhagwati v. Banwari Lal I.L.R (1908) All. 83 . That was, no doubt, a case u/s 318 of the CPC of 1882; but the place of that section has been

taken by Order XXI, Rule 95, of the present Code. It is clear, therefore, that the court below acted without jurisdiction in entertaining an appeal

from the order of the court of first instance. Moreover, in our opinion, in view of the language of Section 146 of the Code of Civil Procedure, the

applicants were entitled to maintain their application though they were transferees from the auction-purchaser and were not themselves the auction-

purchasers. On behalf of the opposite party we are asked not to interfere, as it is the practice of this Court not to exercise its powers of revision in

cases in which another remedy is open to the applicant, that remedy being a suit for possession. No doubt ordinarily this Court would not interfere

in revision in a case where a remedy is open to a party. But, as observed in Ram Narain v. Muhammad Shah (1914) 12 A. L. J. 899 each case

must be judged upon its peculiar circumstances. In the present case there were no complicated questions of fact or law, and the applicants were

clearly entitled to obtain possession by virtue of their purchase from the auction-purchaser. We allow the application, set aside the order of the

court below, and restore that of the court of first instance with costs in all courts.