SUBRATA KUMAR PATRA Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) This is an appeal by the claimants in a proceeding under Order 21 Rule 58 of the Code of Civil Procedure which was registered as Judicial Misc. Case No. 7 of 1983 and is directed against an order dated February 6, 1984. By the order impugned the learned Judge has over-ruled the claim.

(2.) It is not in dispute that a partnership firm of which Chandan Kumar Sai and Manindra Nath Jana were the two partners took a loan from the decree- holder United Bank of India on hypothecation of a truck bearing no. W. B. C. 3451. It is alleged that the two partners rendered themselves personally liable for the debt so incurred and furnished their personal properties by way of security. The present dispute relates to Manindra Nath Jana's share in plot no. 101, Khatian no. 132 of Mouza Sayedpur, P. S. Ramnagar, District : Midnapore. In his share would fall about 13 decimals out of the plot. The United Bank of India filed a mortgage suit against the partnership firm as also partners and the other guarantors being Mortgage suit no. 28 of 1978. This suit was filed in April, 1978. The suit was decreed on May 20, 1980 and the Bank then in execution qf the said decree attached the aforesaid property being plot no. 101, khatian no. 132 in mortgage execution case no. 5 of 1981.

(3.) The present claimants put forward a claim to the effect that by two successive transfers dated May 31, 1977 and! November 27, 1976 Manindra Nath Jana sold his share in the aforesaid plot no. 101, Khatian no. 132 in favour of the claimants. They are not hound by the decree and the property purchased by them was not liable to be sold in execution of the decree. This objection has been overrule by the learned Assistant District Judge, second court, Midnapore by the order impugned on a finding that since the claimants were the purchasers with notice of the charge over the property in favour of the bank they cannot avoid the liability of the property being sold for realisation of the decretal amount outstanding. Feeling aggrieved by this order the claimants have preferred the present appeal.