NITYANANDA MOHAPATRA Vs. MADHUSUDAN MOHAPATRA

JUDGEMENT

(1.) THESE four appeals arise out of one judgment passed under Section 47 C. P. C. by the Subordinate Judge of Berhampur in two execution petitions (E. P. 48 of 1958 and E. P. 73 of 1958), The facts which are somewhat complicated are as follows. Appellant Nityananda Mohapatra (hereinafter referred to as the attaching decree-holder) obtained a decree on 10-1-1938 in O. S. No. 514 of 1935, in the court of the Munsif of Aska, against one Madhusudhan Mohapatra (hereinafter referred to as the transferor decree-holder) and others. The decree was made absolute on 9-5-1942. In execution of that decree, in E. P. 75 of 1943, Nityananda Mohapatra attached the decree obtained by the transferor decree-holder in O. S. 48 of 1935 in the Court of the Subordinate Judge, Berhampur. The attachment of that decree was made final on 24-6-44. But prior to that attachment Madhusudhan transferred the decree in favour of his wife Kousalya Devi (hereinafter referred to as the transferee-decree-holder ). Both the attaching decree-holder and the transferor-decree-holder took out several executions of their decrees. It is unnecessary to refer to them in detail. It is sufficient to say that in E. P. 193 of 46 in the Court of the Subordinate Judge of Berhampur filed by the transferee decree-holder the attaching decree-holder intervened and filed objections. His execution petition No, 44 of 1946 had already been filed before the same Subordinate Judge on 20-1-1946 (His earlier execution petition E. P. 153/45 had been dismissed for default on 13-8-45 ). The learned Subordinate Judge by his order dated 29-8-47 overruled the objections to the executability of the decree raised by the attaching decree-holder, but with a view to safe-guard his interests he passed the follow-ing order;

(2.) THUS the learned Subordinate Judge practically linked up the two execution petitions, namely, E. P. 193/45 of the transferee decree-holder and E. P. No. 44/46 of the attaching decree-holder. The execution petitions proceeded in their usual course and ultimately some properties were brought to sale and sold for Rs. 5800/- out of which a sum of Rs. 4472/8/- was directed to be paid to the attaching decree-holder. The sale was confirmed in due course and on 11-9-54 E. R. No. 193/1946 and E. P. No. 44/46 were both dismissed on full satisfaction.

(3.) BUT one Narasingho Sabato who was an unsuccessful claimant in the attachment proceedings filed Title Suit No. 50 of 1953, under Order 21, Rule 63, c. P. C. , in the Court of the Subordinate Judge of Berhampur challenging the attachment and sale of the properties claiming them to be his own. The suit was decreed in his favour on 15-3-1958 and his title to the lands sold (Except Survey no. 1786) was declared. Thereupon the attaching decree-holder filed E. P. No. 48 of 1958 and the transferee decree-holder filed E. P. No. 73 of 1958 for revival of their previous execution cases, viz. E. P. 44 of 1946 and E. P. No. 193 of 1946 respectively and for realisation of their dues. The main objection was by judgment-debtor No. 9 Pollaya Dora who urged that as the aforesaid two execution petitions had been dismissed on full satisfaction on 11-9-54 after confirmation of sale and as no application was made under Order 21, Rule 91 for setting aside the sale on the ground that the judgment-debtors bad no saleable interest in the property the execution proceedings could not be revived merely because the unsuccessful claimant subsequently succeeded in his suit under Order 21, Rule 63, C. P. C.