GHANSHYAMDAS Vs. OM PRAKASH

JUDGEMENT

(1.) THIS appeal by special leave is directed against the judgment dated' 3.9.91 or the High Court of Bombay, Nagpur Bench in Second Appeal No. 351 of 1991.

(2.) OM Prakash ami Shantabai, original plaintiffs (hereinafter referred to as Respondents) filed Special Civil Suit No. 44 of 1985 for recovery of possession and damages at Rs. 10,000 on the following averments. A money decree was obtained in Civil Suit No. 133/64 against Balkishan and Laxminarayan. In execution of that decree, the suit house was attached and sold in Court auction. Gian Chand purchased the auction sale on 26th of August, 1969 for Rs. 6771/ -. He executed a gift of the same by a deed dated 7th of May, 1975 in favour of respondents 1 and 2. Since Ghanshyamdas and Gokuldas, original defendants (hereinafter referred to as the appellants) are relations, they were permitted to occupy the southern side of the suit house. On 21st of August, 1984 a notice was issued calling upon them to vacate. This was not complied with. Hence, they filed a suit for recovery of possession and damages of Rs. 10,000/ - for wrongful occupation.

(3.) THE Appellate Court, on a consideration of the matter, directed remand. On remit, the trial Court again dismissed the suit. The matter was appealed against in Civil Appeal No. 147 of 1987, The appellate Court came to the conclusion that the Court auction purd1aser Gian Chand acquired valid title in view of the sale certificate issued in his favour. The plea of benami could not succeed in view of section 66 of the Code of Civil Procedure (hereinafter referred to as the Code). The Court auction sale was not hit by section 5201' the Act. The appellants were precluded from challenging the sale in view of dismissal of the proceedings under Order 21, Rule 58 of the Code and the claim suit under Order 21, Rule 63 of the Code preferred by Jamnadas. They would constitute res judicata. In this view, the suit was decreed, Challenging the correctness of the decree Second Appeal No. 351 of 1991 was preferred to the High Court of Bombay. The High Court concluded that in the absentee of any objection or claim by Jamnadas the attachment on the consequent sale had atained finality. Gian Chand secured indefeasible title. The partition decree obtained by Jamnadas in Civil Suit No. 554 of 1964 would not, in any way, militate against that title. Section 52 of the Ad will have no application to involuntary sales. Though the finding of the lower Court that the proceedings under Order 21, Rule 58 and Rule 63 of the Code would constitute res judicata, was not correct, Act the appellants were not entitled to succeed. The plea of penami was liable to be rejected in view of section 66 of the Code. In the result, the appeal was dismissed. Under these circumstances, this appeal by special leave arises. Mr. Bobde, learned counsel for the appellants urges only the following points for our consideration.