TRILOK CHAND Vs. SURJA

JUDGEMENT

(1.) THIS is a decree-holders second appeal from the decree of the Second Additional Civil Judge of Meerut reversing that of the Second Additional Munsif, Chaziabad and dismissing his suit under Order XXI, R. 63 C.P.C., for a declaration that two houses situated in Qasba Khekra were liable to attachment and sale in execution of a decree obtained by the plaintiff. The facts are these :- The appellant Trilok Chand filed a suit against one Gyani for recovery of money due on a bond and obtained an order under O. XXXVIII R 5 C.P.C. for the attachment of the two houses before judgment. The suit was decreed and the appellant applied for the sale of the houses in execution, but the respondent, Surja, applied for the removal of the attachment on the ground that the two houses had been purchased by him from Gyani for a sum of Rs. 1000. The Court allowed the objection and released the two houses from attachment. The appellant then filed the present suit under Order XXI. Rule 63 C.P.C. He alleged that the sale deed in favour of Surja was collusive, without consideration, and executed with the object of defeating the creditors of Gyani. The defendant resisted the suit and alleged that the sale deed was genuine and that he had purchased the two houses for a sum of Rs. 1000.

(2.) THE trial Court believed the version of the appellant and disbelieved that of the respondent, and held that the sale deed executed by Gyani in favour of defendanl Surja was collusive, fictitious, and without consideration. He decreed the suit. But on appeal the learned Civil Judge reversed the findings of the trial Court and held that the plaintiff had not proved that the sale deed was fictitious or without consideration. He dismissed the suit, and the plaintiff has now come up to this Court in second appeal.

(3.) THE learned Judge has found that plaintiff "has not proved that Gyani had executed Ex. A-5 a registered sale deed dated 3-11-51 for no consideration". This is a finding of fact which ordinarily would be binding on this Court in second appeal unless it is vitiated by any error of law. I regret that the learned Civil Judge committed several such errors while assessing the evidence of the parties While considering the question whether Surja had paid Rs. 1000 as consideration to Gyani, he observed "Gyani has not appeared to deny the receiving of the sale consideration. He had not been even impleaded as a defendant in the suit instituted by the plaintiff respondent." As I understand his observation, the learned Judge thought that the plaintiff should have produced Gyani to prove that Gyani had executed a fictitious and fraudulent sale-deed. This was a wrong approach to the question of onus of proof to say the least. There is no onus on a decree-holder alleging that a sale-deed affecting his right to attach the property is fraudulent to produce as his witness the very party against whom fraud is alleged. Secondly, summoning him would be futile as no person can be compelled on oath to admit that he conspired to cheat the Court and abuse the process of the law. Thirdly a decree-holder in a suit under Order XXI, Rule 63 C.P.C. is not ordinarily required to implead the vendor of the disputed sale, for his right to attach the property is not disputed by the vendor but the vendee the vondor having declared that the property does not belong to him and he has no interest in it. Therefore, the learned Judge was not entitled to draw any adverse inference against the plaintiff for his omission to implead Gyani as a co-defendant or produce him as a witness. As he was obviously influenced by this omission while assessing the evidence of the parties, his finding is vitiated.