SUNDARIS Vs. BHOLA NATH

JUDGEMENT

(1.) One Bachai (hereinafter referred to as the judgment Debtor) had taken a loan from Raja Ram (hereinafter referred to as the Decree holder) Since the loan was not repaid. Raja Ram filed Suit No. 261 of 1966, which was decreed by judgment dated 13-12-1966. The appeal of Bachai was dismissed. Thereafter, the decree was put in execution. Before the property of the judgment debtor could be attached in execution proceedings, the judgment debtor sold his property by sale-deed dated 28-4-1967 to Ganga, plaintiff and to Basdeo, defendant No. 1. By order dated 29-5-1967, the property in question was attached in execution proceedings. The plaintiff filed an objection under Order 21, Rule 58 of the Code of Civil Procedure praying that the order of attachment was illegal. The objection of the plaintiff was rejected by the executing Court vide order dated 12-7-1969. Immediately thereafter, the plaintiff Ganga filed a suit under Order 21. Rule 63 of the Code of Civil Procedure praying that the plaitiff and defendant No. 4 be declared as Bhumidhars of the plot in question. During the pendency of the suit the executing Court auctioned the property to one Sukku (hereinafter referred to as the Auction Purchaser). Consequently, the plaintiff made a further prayer that the auction be declared illegal and the plaintiff and defendant No. 4 be put back in possession. The plaintiff alleged that he had purchased the property vide sale deed dated 28-4-1967 prior to the attachment order passed by the executing Court and that he is the Bhumidhar of the land in question and that the said property cannot be attached nor can it be auctioned in execution proceedings.

(2.) The decree holder. Raja Ram, filed his written statement and submitted that the sale deed had been executed by the judgment debtor in order to defraud the creditor and to defeat the decree passed in Suit No. 261 of 1966. It was also contended that the executing Court auctioned the property in favour of the auction purchaser Sukku and that the auction purchaser had been put in possession on the land in question and therefore, the attachment and the auction proceedings have come to an end and the present suit of the plaintiff had become infructuous.

(3.) The auction purchaser also filed his written statement and submitted that he was the auction purchaser having purchased the property through auction in the executing proceedings conducted by the executing Court and that he had been put in possession of the land in question. It may be stated here that the Judgment debtor Bachal was also arrayed as a defendant, but he neither filed his written statement nor appeared as a witness.