RAMAKRISHNA ACHARYA Vs. BAURI PADHAN AND ORS.

JUDGEMENT

(1.) THE unsuccessful Defendant No. 1 has preferred this second appeal against the judgment and decree of the Subordinate Judge, Aska, reversing the judgment and decree passed in favour of Defendant No. 1 by the trial Court.

(2.) THE Plaintiffs filed this suit for setting aside the Court sale ordered in E.P. No. 242/63, and for a declaration that The judgment debtors in S.C. No. 161/56 had no saleable interest in the property. The Defendant No. 1 previously filed a suit (being S.C. No. 161/56) against Panchu Padhan, the brother of the Plaintiffs 1 and 2. In E.P. No. 242/63 arising out of the decree obtained in S.C.C. No. 161/56, the Defendant No. 1, who was the Plaintiff in that suit, got the suit land, along with some other lands, attached and sold in the said proceeding, and he himself purchased the suit land. The present Plaintiffs before filing this suit filed a petition under Order 21, Rule 58, Code of Civil Procedure but as that was rejected by the Court, they filed this suit with the above prayer on various averments, mainly directed to show that late Panchu Padhan, the judgement debtor in the former suit of 1956 and/or his legal representatives, did not have any interest in any portion of the suit land.

(3.) THE trial Court dismissed the Plaintiffs ' suit by holding inter alia that the judgment debtors in the S.C.C. suit bad interest in the suit land and accordingly the sale in the Execution proceeding could not be set aside.