VORA MULLA TAHERALI MULLA AKBARALI Vs. MANORANJAN BARUA

JUDGEMENT

(1.) The appellant in Second Appeal No. 424 of 1961 is the plaintiff; while the appellant in Second Appeal No. 539 of 1961 is the defendant in Civil Suit No 97 of 1957 filed in the Civil Court at Sidhpur. The circumstances under which these two Second Appeals arise may be briefly stated

(2.) The subject matter of this dispute is a house at Sidhpur and it belonged to one Alihussain Mahmadalli Iqbal. On 6-11-1952 Alihussain entered Into an agreement for sale (Exh. 120) of this house with the plaintiff and the sale price was fixed at Rs. 8 0 out of which an amount of Rs. 2 500 was paid to Alihussain by the plaintiff on 6-11-1952. The balance amount of the purchase price has been paid by the plaintiff by the end of 1954. With the execution of the agreement on 6-11-1952 Alihussain put the plaintiff in possession of the house. The present defendant obtained a money-decree against Alihussain on 15-2-1955 in suit No. 873 of 1954 in the Calcutta High Court. The present defendant- judgment creditor filed Execution Application No. 75 of 1955 in the Court of the Civil Judge (Junior Division) at Sidhpur and in execution of the decree he got the house attached on 27th June 1955. The plaintiff thereupon filed a claim petition No. 19 of 1956 under Order 21 Rule 58 of the Civil Procedure Code to get the attachment raised of the ground that he was the exclusive owner of the property. This claim petition was dismissed by the Court on 26th July 1957. The plaintiff thereupon filed Civil Suit No. 97 of 1957 on 2-9-1957 asserting that he is the exclusive owner of the property and asking for a declaration that the properly is not liable to attachment and sale in execution of the decree of the defendant and for an injunction restraining the defendant from putting the property to sale in the Execution Application. In this suit the defendant contended that the sale agreement was not genuine and that it was executed to defeat the claim under the decree. He also raised two more contentions to the effect that the judgment-debtor that is Alihussain was a necessary party to the suit and that the suit was not maintainable at the instance of the present plaintiff in view of the provisions of sec. 53A of the Transfer of Property Act.

(3.) The learned trial Judge accepted all the contentions raised by the defendant and consequently dismissed the suit of the plaintiff The plaintiff filed Civil Appeal No. 227 of 1959 on 19-10-1959 to the District Court at Mehsana The appeal was heard and decided by the learned Assistant Judge in that Court. The learned Assistant Judge held that the judgment-debtor was not a necessary party and that the provisions of sec. 53A of the Transfer of Property Act created no bar to the plaintiffs maintaining this suit. He also held that the agreement for sale was genuine and that possession was taken by the plaintiff under the agreement for sale on 6-11-1952 and that all moneys due under the agreement for sale had been paid to Alihussain by the plaintiff before the end of 1954. He also held that the agreement for sale was not made to defeat the creditors. He however came to the conclusion that the Intention of the parties when the agreement of sale was executed by Alihussain was to give the house as security for an amount of Rs. 8 0 He therefore reversed the decree of the trial Court and passed a decree (declaring that the suit house should be sold in Darkhast No. 75 of 1955 subject to the plaintiffs charge over it for Rs 8 0 It is against this decree passed by the first appellate Court that the plaintiff has preferred Second Appeal No. 424 of 1961 in so far as it declares that the property is liable to be sold in the execution application filed by the defendant; while the defendant has preferred Second Appeal No. 539 of 1961 in so far as the first appellate Court has ordered the property to be sold subject to the plaintiffs charge over it.