(1.) This Second Appeal, Under Sec. 100 Code of Civil Procedure, has been preferred against the judgment and decree dated 19.9.1983, passed by Additional District Judge, Dehradun in Civil Appeal No. 121 of 1978 arising out of Suit No. 214 of 1976.
(2.) Brief facts giving rise to this appeal are that Respondent Rajendra Prasad Goel filed a suit before the Civil Judge, Dehradun, for declaration that the property given at the schedule of the plaint was not liable to attachment and sale in the decree passed in suit No. 194/1950 by the Civil Judge Saharanpur and in Misc. Case No. 123/67 of the Court of Civil Judge, Roorkee (Saharanpur). According to plaint case Jagat Gram Sanyukta Sahkari Samiti, Jagat Gram, Ashok Ashram, Dehradun has been a duly constituted and registered society, which is registered with the Registrar, Cooperative Societies Meerut in the year 1969 and the disputed property had been transferred under the control and management of the said Cooperative Society. The Cooperative Society had mortgaged the said property with the District Cooperative Bank, Dehradun by a registered mortgaged deed dated 14 -12 -1970 for the development of the said land and for agriculture on the basis of cooperative system. On failing to repay the debts of the mortgage, the said society vide its resolution No. 2 dated 13.2.1975 resolved to sell the property which was approved by the District Cooperative Bank, Dehradun. The property was sold to the Plaintiff/respondent (sic)ide sale deed dated 25.3.75, which was registered on 28 -4 -1975, for the consideration of a sum of Rs. 6,930/ -. The Plaintiff was also delivered the possession of the property. The Plaintiff's case further is that he developed the said property after making investment of a huge amount. On 3 -4 -1976 the Plaintiff received a notice from Sri N.K. Sharma, Advocate on behalf of Sri Shiv Chand Kumar, that the disputed land was attached in execution No. 2 of 1975 in the Court of Addl. District Judge, Dehradun. The Plaintiff moved an application under Order 21 Rule 58 Code of Civil Procedure before the Additional District Judge, Dehradun, but the same was rejected for the reason that the application was moved after expiry of six months. The Plaintiff/respondent alleged that at the time of attachment the disputed property was in his possession and he was recorded as Bhumidhar of the same, Shiv Chand Kumar was not the owner of the land nor he was in possession and he had no right to transfer the property in suit. The Plaintiff has no concern with the decree passed in suit No. 194 of 1950, hence the property was not liable to attachment. The Defendants were served with notice Under Sec. 80 Code of Civil Procedure but they did not agree to leave the property in suit, hence the suit was instituted.
(3.) The Defendant Union of India contested the suit on the ground that there is no cooperative society as alleged in the plaint, and no property was entrusted in the management of such a society; that the land was not mortgaged to the Cooperative Bank; that the proposal, if any, made to sell part of the property, was with malafide intention to defeat the realization of the decreetal amount against the mortgagor and as such the act of the mortgagor is unlawful; that there has been no sale of the property in favour of the Plaintiff nor is the same lawful and is void and in order to defraud the decree holder/creditor, i.e. Union of India, who is executing the decree against Sri Shiv Chand Kumar, the real owner of the land and against whom execution is pending in the Court of Addl. District Judge, Dehradun; that it is wrong to say that the Plaintiff was in possession of the property or cultivating the same and the name of the Plaintiff, if mutated has been done clandestinely when the land was already under attachment and as such the same is unlawful; that Sri Shiv Chand Kumar and Plaintiff were colluding to file a false objection against the execution proceedings; that the order of attachment is correct and has rightly been passed and that the suit has been filed merely with malafide intention to safeguard the interest of said Shiv Chand Kumar. It was also alleged that no notice Under Sec. 80 Code of Civil Procedure has been served upon the Union of India.