HAREKRISHNA PATRA Vs. BANAMALI ROUL

JUDGEMENT

(1.) THE plaintiff is in appeal against a confirming judgment of the learned First Addl. Subordinate Judge, Cuttack.

(2.) HE sued under Order 21, Rule 63, C.P.C. for a declaration that the property sought to be proceeded against was liable to be executed against Defenddants 2 to 4 are brothers and members of a Hindu undivided family. Defendant No. 2 for the family borrowed Rs. 500/-on 1-2-53 from the plaintiff upon a promissory note. As there was default of payment, Money Suit No. 43 of 1956 was filed by the plaintiff and he obtained a decree on 20-9-1957 for Rs. 821-12 and levied Execution Case No. 268 of 1958 for recovery of the said amount. The properties of the family were sought to be put to sale. The plaintiff who knew defendant No. 1 as one of his debtors relied upon him for supply of particulars of the properties. On the basis of the information given the plaintiff brought certain properties to sale and the decree-holder purchased the properties proceeded against. The execution case was dismissed on 23-9-59 on satisfaction. Thereupon one Bauribandhu Roul applied under Order 21, Rule 90, C.P.C. claiming the property. The said application was ultimately allowed and the auction sale was set aside. The plaintiff levied fresh execution case No. 14 of 1960. In the meantime defendant No. 1 who also happens to be a cousin of defendants 2 to 4 entered into collusion with the judgment-debtors and obtained a sale deed in respect of the disputed properties 3.96 acres in extent on 22-8-59. This sale deed was for Rs. 2000/-. Defendant No. 1 applied under Order 21, Rule 58, C.P.C. for release of the properties covered by the sale deed. His application was registered as Misc. Case No. 128 of 1960 and was ultimately allowed by order dated 30-1-1961 and the properties were allowed to be released from execution. Therefore, the present suit has been instituted.