PADMABATI BEHERA AND ANOTHER Vs. BASUDEB BEHERA

JUDGEMENT

(1.) This revision by the holders of a decree passed in a suit for maintenance arises out of a claim proceeding under Order 21, Rule 58 of the Code of Civil Procedure, which has been decided by the District Judge, Balasore, in appeal, in favour of the claimant-opposite party.

(2.) The following facts were admitted at the hearing.Petitioners 1 and 2 (decree-holders) arc wife and daughter of Laxman Behera. They brought maintenance suit hearing C.S.No. 42 of 1979-11 against aforesaid Laxman and obtained an ex parte money decree in their favour. They put the decree to execution in Execution Case No. 7 of 1982 wherein certain properties were attached. In this Execution case, the opposite party, a minor, through his mother guardian preferred claim to the attached properties under Order 21, Rule 58 of the Code on two counts. In the first count it was urged that he had purchased a portion of the attached properties by a registered sale deed dated. 5.7.78 from Laxman Behera. In the second count it was urged that the attached properties being the ancestral properties of Laxman, the claimant had 1/6th share therein. Thus on these two counts the opposite party claimed that his purchased land and 1/6th share are not liable to be attached and sold in execution of the decree obtained by the petitioners.

(3.) The executing court allowed the claim only in respect of the property covered by the registered sale deed and rejected the claim so far as 1/6th share was concerned. Aggrieved by such decision of the executing court, the claimant preferred appeal to the District Judge, Balasore, who by the impugned order has directed that 1/6th share of the claimant in the attached properties shall be excluded from attachment and sale in execution of the decree in question. It is this order of the District Judge which is assailed in this revision.