KRISHNA GOPAL Vs. GOKUL PRASAD

JUDGEMENT

(1.) THIS appeal has been filed against the order of the Civil Judge, Farrukhabad, by which he allow ed the objections under Sections 47 and 151, Civil P. C. and set aside the sale and directed that the money deposited be re turned to the auction purchaser.

(2.) THE facts giving rise to the present appeal in short are that one Ambalal Patel obtained a decree against Ram Rakshpal and Shanta Prasad in suit No. 36 of 1957. The decree was put in execution and the execution case was numbered as 44 of 1960. In execution of the decree on 27-8-1960 a stock of foodgrains was attached by the Amin and given in the securiy of Gokul Prasad and Markandi on their executing a bond for the return of the property whenever required by the Court and to pay a sum of Rs. 3333 in case of default. Kishan Gopal filed ob jections in execution and contended that the property attached belonged to him and not to the judgment-debtor and was not liable to attachment. These objec tions of Krishan Gopal under O. 21, R. 53 were enquired into by the Executing Court and a final Order under O. 21, R. 60 was passed by the Court releasing the property in favour of Kishan Gopal, Gokul Prasad and Markandi, The sureties, however, refused to return the goods and alleged that due to rains it had been spoiled and thrown away. On enquiry made by the Court, it came to the conclusion that the case put up by the sureties was false and that they had sold away the goods and misappropriated the proceeds. The Court on this finding direct ed that a formal order be prepared for recovery of Rs. 3333 along with costs from, the sureties and execution for the same be proceeded under Section 145, Civil P. C. In this execution the properties of the sureties were sold on 17th of March,, 1963. Gokul Prasad filed an objection under Sections 47 and 151, Civil P. C. for setting aside the sale on the ground that the order in execution of which the pro perty had been put to sale was a nullity and the sale was, therefore, invalid. The contention was that Section 145, Civil P, C-was not applicable to the circumstances of the case and no execution could be launched for recovery of the amount from the sureties.This objection was allowed by the Executing Court and the sale was ordered to be set aside. The present ap peal is against that order. It has been filed by Kishan Gopal whose properties have been attached in execution of the decree against Ram Rakshpal and Shanta Prasad.

(3.) THE Allahabad amendment further permitted the making ' of an arrange ment as may be deemed convenient and economical and it did not remain neces sary that the property must be secured in the custody of either the attaching officer or his subordinate. The attached property in the present case was thus entrusted by the Court to the custody of Gokul Prasad and Markandi in pursuance of these provisions. In the bond executed by these two persons it was stated that the goods which had been attached by the Amin were in their custody as sureties. They undertook to keep the goods in safe custody and to produce the same forth with on demand, at any place which may be communicated by the Court or the Court's Amin and that in case they fail to produce the goods, the Court may recover from the person and properties of the sureties, the estimated price of the goods. The estimated price was mentioned as Rs. 3333. Gokul Prasad and Markandi thus became bound as sureties either to return the goods or to pay the value thereof.