PAILEE Vs. KRISHNA PANICKER

JUDGEMENT

(1.) The defendant in S. C. S. 997/57 on the file of the Munsiff of Kozhikode is the revision petitioner. The decree obtained against him was put in execution and the schedule items 2 acres and 94 cents of garden land with building and 1 acre and 14 cents of paddy land were sold to the 3rd respondent for Rs. 26/- On 3-7-67. The defendant is the assignee from the debtor and the assignment was taken at a time when the E. P. was pending. Proceedings in execution, thereafter were not known to the petitioner and he came to know of the same only on 5-7-63 when the Amin went over to the property for effecting delivery. He accordingly filed a petition under Order 21. Rule 90 C. P. C. for setting aside the sale. Along with that petition a claim petition under Order 21, Rule 58 was also filed; but that was not pressed and it was accordingly dismissed.

(2.) The learned Munsiff took the view that the petition for setting aside the sale is not maintainable and the proper course open to the petitioner was to file a claim petition under Order 21. Rule 58. The Court further held that it was unwise on the part of the petitioner to have not pressed the petition under Order 21, Rule 58. To quote the learned Munsiff:

(3.) The learned appellate Judge. I am afraid, has gone at a tangent and dismissed the petition on unsustainable grounds. This court has held in Mathen Simon v. Ouseph Looka. (AIR 1964 Ker 88) that so long as the judgment-debtor does not come to know of the sale, the effect of the fraud continues, and the only conclusion to which the courts can come is that he had been kept back from the knowledge of the sale in consequence of the initial fraud practised by the decree-holder. The learned Judge observed in that case:--