MOHAMMAD YOUSUF Vs. JYOTSANA BEN

JUDGEMENT

(1.) This is an appeal against he order dated 12-1-90 filed by the objectors der Order 21, Rule 58(4) of the Code of Civil Procedure. The 1st Additional District Judge to the Court of District Judge, Satha, has rejected the application under Order 21, Rule 58 of the Code of Civil Procedure registered as M.J.C. No.26/88. This appeal is filed under Order 21, Rule 58(4) of the Code of Civil Procedure read with Section 96 of the Code.

(2.) The respondents 1 to 4 were the decree holders who filed Execution Case No.47/79 against the judgment-debtor Mohd. Ahsan Bux. It is alleged in the application under Order 21, Rule 58, filed by the appellants, that the property in question known as 'Chandani Talkies', shown as House No.190/ 1125 Purana Ward No.11, Satna in the Municipal records, was not liable to attachment. It was alleged inter alia that same property was sold to the appellants by a registered sale deed dated 5-10-70 pursuant to an attachment for recovery of Income-tax dues against the judgment-debtor. The appellants stated that they purchased the attached property after obtaining permission of the Income-tax Officer. They stated that they had deposited Rs. 73,000/- by Treasury Challan No.3015/1/1 dated 5-10-70 in State Bank of India, Satna towards the Tax dues of the judgment-debtor. It was further alleged that earlier the same property was attached in the Execution Case No.47/74 at the instance of the decree holders. The appellants had objected to attachment on the ground that the property belonged to them. The claim of the appellants was duly investigated. The property in question was released by order dated 18-4-80 passed by District Judge, Satna. Subsequently another order of attachment was obtained by decree holders on 29-10-86. The fact of earlier release from attachment was suppressed by the decree-holders. The Court also did not notice it. No notice was served upon the appellants. The Court then proceeded to auction the property and published the sale notice as per order dated 30-11-88. There upon the appellants filed objection under Order 21, Rule 58 of the C.P.C. to the attachment of property on 1-12-88,

(3.) The respondents Nos.1 to 4 appeared to have not disputed the fact of earlier attachment. They however denied that earlier order in Execution Case No.47/74 was not in any way res judicata. They alleged inter alia that they have obtained a decree against the Firm of which the appellants were also partners and, therefore, even if they purchased the property, they are bound to pay the debts. The objection under Order 21, Rule 58 of the C.P.C. was made with an object to defraud and defeat the creditors. The transfer by Mohd. Ahsan Bux in favour of his sons was bogus. He had no power to transfer the property belonging to the Firm. The sale was void. It was alleged that Mohd. Ahsan Bux, the judgment-debtor, fullly knew about the attachment. He had twice filed objection. The objectors knew about the attachment as it was earlier published in News Papers. The objection of Mohd. Ahsan Bux was rejected on 30-11-88. Thereupon the appellants filed the objection.