NAGAVVA Vs. TUKARAM

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 2-11-1974 passed by the District Judge, Karwar, in R.A.No. 37 of 1964 confirming the judgment and decree dated 17-8-1955 passed by the Civil Judge, Senior Division. Karwar. in C.S. No. 6 of 1954.

(2.) The appellant/plaintiff filed the suit against the defendants for declaration to the effect that she was entitled to obtain possession of the suit schedule properties from the defendants and for a further decree setting aside the order dated 28.12.1953 passed by the Civil Judge, Senior Division, Karwar, in K. Mis. No. 15 of 1952 - an application filed by her under Order XXI Rule 97 of the Code of Civil Procedure, as it stood then. The trial Court dismissed the suit and the first appellate court confirmed the decree of dismissal.

(3.) The facts either admitted or undisputed or proved by evidence may be narrated as follows: The plaintiff filed a special suit in O.S. No. 195 of 1940 against one Veerabhadrappa and others for possession of the properties and mesne profits. The property in question was not the subject-matter of that suit. A preliminary decree was passed in her favour on 23-10-1940 (Exhibit 18). She applied for passing a final decree which involved the question of deciding the quantum of mesne profits also. On 27.7.1940 Veerabhadrappa, one of the judgment-debtors, gifted the present suit property in favour of his wife Iravva by a registered Gift Deed dated 27-7-1940 (Exhibit 17). During the continuance of the final decree proceedings, the plaintiff Nagawa got the present suit property attached on 8-6-1943. That attachment was raised on 3.4.1944. Nagawa filed an original suit in O.S. No. 92 of 1944 on the file of the Civil Judge, Senior Division, Karwar, on 1/-4-44 against Irawa for setting aside the order dated 3-4-1944 by which the attachment of the property in question was raised and for a declaration that the gift by Veerabhadrappa in favour of Irawa (Exhibit 17) was bogus and the property conveyed under the said Gift Deed was liable for attachment and sale in the final decree to be obtained by her. This suit (Exhibit 20) came to be registered on 21-4-1944 in the said Court. But, on 20-4-1944 itself Irawa sold the suit property by executing a registered sale deed (Exhibit 27) in favour of Janabai, mother of the defendants. The matter stood at this stage. A final decree was passed in favour of the plaintiff Nagawa on 31-1-1945 awarding Rs. 4,168/- as mesne profits in her favour. Nagawa executed the decree in Execution No. 116 of 1949 and sought to recover the said sum by sale of the present suit property which was in the possession of the defendants. The sale took place on 23-8-1951. Nagawa, the plaintiff/decree-holder, herself purchased the property in the auction-sale after obtaining permission of the Court. The sale was confirmed on 28-9-1951. The decree-holder/auction-purchaser viz., Nagawa, the present plaintiff, proceeded to take possession of the present suit property. The defendants obstructed. Hence, she filed K. Mis. No. 15 of 1952 (Exhibit 5) under Order XXI Rule 97 of CPC as it stood then. This came to be dismissed on 28-12-1953. Thereafter she filed the present suit for a declaration that she was entitled to obtain possession of the suit property from the defendants and for a decree setting aside the order dated 28-12-1953 dismissing the application in K. Mis. No. 15 of 1952. It is to be made clear here that she has not asked for a relief of actual possession of the suit schedule property. Various contentions were raised on behalf of the defendants. The contention that weighed with the two courts below is that the decree in O.S. No. 92 of 1944 was passed by the trial Court which had no jurisdiction inasmuch as it had been passed by the Civil Judge, Senior Division, Karwar.