BHOJAI Vs. SALIM ULLAH AND OTHERS

JUDGEMENT

(1.) THIS is an appeal by a defendant, and it arises out of a suit for setting aside a final decree passed under O. XXXIV, R. 5. C. P. C. and the execution proceedings based thereon which terminated in the auction sale of a house belonging to the plaintiff, on the ground of fraud.

(2.) THE house was purchased by Hayat Ullah plaintiff on 10-11-1937. Adjoining this house is a house owned by Sakhawat Ali and Hashmat Ali defendants Nos. 2 and 3 who are brothers. These houses are situate within the municipal limits of Allahabad. Formerly, both these houses were designated by one single municipal number, i.e., No. 136, but later the house in dispute was described as No. 136-A and the house owned by defendants Nos. 2 and 3 as No. 136 in the municipal records. Defendant No. 1, the Municipal Board of Allahabad, brought suit No. 174 of 1943 at Allahabad for the recovery of Rs. 16-12-0 as arrears of house and water taxes in respect of the houses against the plaintiff and defendants Nos. 2 and 3 and a preliminary decree for sale under O. XXXIV, R. 4 of the C. P. C. was passed in that suit on 11-4-1944. At the time of the suit the houses were not only described as No. 136 but were entered in the names of defendants Nos. 2 and 3 alone in the municipal records. These facts are not in dispute.

(3.) THE trial Court held that no fraud was proved and dismissed the suit. On appeal by the plaintiff, the learned Civil Judge disagreed with the conclusion of the trial Court and found that the final decree was obtained by fraud in the manner alleged by the plaintiff and was the result of a collusion between the defendants. The judgment of the trial Court was, accordingly, reversed by the learned Judge, and the suit of the plaintiff was decreed. Bhojai defendant No. 4 who claims to be the auction purchaser of the house in dispute has preferred this appeal.