ASHUTOSH RATH Vs. VYSYARAJU BADAREENARYAN

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff whose suit, under Order 21, Rule 63, Code of Civil Procedure was dismissed by the Additional Subordinate Judge, Berhampur. Late Balakrushna Rath, the father of the Plaintiff had taken on loan of Rs. 9.150/ - on two hand notes dated 27.6.1951 from late V. Venkataratnam Raju, husband of Defendant No. 2 and father of Defendant No. 1. The hand -notes were kept alive by payments made from time to time by late Balkrushna Rath. The Defendants instituted a suit on the hand -notes against late Balkrushna Rath (M.S. 14/63) and obtained a decree for about Rs. 17, 000/0. In execution of that decree (E.P. No. 35 of 1963) against Balkrushna Rath, the house mentioned in the schedule to the plaint in the present suit was attached. The Plaintiff thereupon filed a petition under Order 21, Rule 68, Code of Civil Procedure claiming that in a prior partition between himself and his father, the plaint schedule property had fallen to his share and that be was Is possession thereof in his own right and that It was consequently not attachable in execution of the decree which the Defendants had obtained against his father. That application having been rejected on 10 -3 -1965, the Plaintiff filed a revision petition in this Court (Civil Revision No. 102 of 1965) which was dismissed on 22.7.1968. The Plaintiff thereafter on 30.8.1968 instituted the Suit giving rise to the appeal.

(2.) IT was contended in the plaint that due to misunderstanding between the Plaintiff and his wife on one side and his parents on the other, an amicable partition of the entire family properties came to be made between the years 1944 and 1952. To avoid further ill -feelings, the Plaintiff 's father relinquished all his properties including the suit house in favour of the Plaintiff by a registered deed of relinquishment dated 9.11.1953 and put the Plaintiff in possession of all the properties. The Plaintiff has thus been enjoying the suit house as his absolute and separate property and had got his name mutated in municipal records in respect thereof. In the year 1961, Balkrushna Bath was declared a pauper. The Defendants being aware of this fact and knowing fully well that Balakrushna Rath was not possessed of any properties executed the money decree which they had obtained against him and attached the disputed house, being fully aware that the disputed house did not belong any more to him. It was further contended that the suit debt in M.S. 14 of 1960 was not incurred by Plaintiff 's father for the benefit of the family or for any legal or binding necessities and the debt was an Avyavaharika debt which the Plaintiff is not liable to discharge. In the circumstances stated above, the Plaintiff prayed for declaration of his title to the disputed house and for a further declaration that it is not liable to be attached or sold in execution of the decree which the Defendants had obtained against the Plaintiff 's father in M.S. 14 of 1960 and to set aside the order passed by the Court below in the claim petition (M.J.C. No. 162 of 1963).

(3.) THE learned Subordinate Judge framed as many as 13 issues in the suit covering the various aspects of the pleadings and after considering the evidence on record held that the disputed house was the self -acquired property of late Balakrushna Rath. He disbelieved the story of partition set up by the Plaintiff and held that the deed or relinquishment Ext. 5 evidenced a sham transaction and was created by late Rath solely with the purpose of defeating the claims of his creditors. He disbelieved the Plaintiff 's case that the debt contracted by his father was an Avyavaharika debt and consequently held that the Plaintiff although not a party to the suit in which the decree under execution was obtained against his father, Is still liable to discharge the debt. On the question of limitation, he held that the suit is not barred by limitation. In view of his other findings, however, he dismissed the suit with costs. Hence this appeal.