JAYAKRISHNA DEBATA Vs. CHAITAN PANI

JUDGEMENT

(1.) THE defendant has preferred this second appeal against the decision of the additional Subordinate Judge, Cuttack in Title Appeal No. 202 of 1965 confirming the decision of the First Munsif, Cuttack in Title Suit No. 30 of 1960.

(2.) DEFENDANT Jayakrishna Debata instituted Money Suit No. 112 of 1952 against one Jagannath Debata in the Court of the Subordinate Judge, Cuttack and obtained a money decree on 6-1-58 against the said Jagannath. When the said suit, instituted in 1952, was pending in the Trial Court, Jagannath Debata sold the suit property along with some other lands as per a registered sale deed dated 318-1956 in favour of the plaintiff and one Sari Debi. In execution of the decree obtained in Money Suit No. 112 of 1952 the defendant attached the suit property. The plaintiff, who purchased the suit land as mentioned above, preferred an objection under Order 21, Rule 58, Civil Procedure Code which was dismissed for default, whereupon he has filed this suit under Order 21, Rule 63, Civil Procedure code for a declaration of his title and possession in respect of the suit property and for a permanent injunction on the defendant restraining him from selling the suit property in the said execution case.

(3.) THE defendant, appellant herein, contests this suit, inter alia, on the ground that the sale deed dated 31-8-56 in favour of the plaintiff is a fraudulent and sham transaction and no consideration passed thereunder. The plaintiff was never in possession of the suit property and the said Jagannah Debata is still in possession thereof. It is also averred that the above-mentioned sale in favour of the plaintiff was with the intent to delay and/or defeat the defendant-creditor's claim against jagannath Debata and it was not in good faith.