MENAKA BEWA Vs. NARENDRA KUMAR MOHANTY

JUDGEMENT

(1.) Plaintiff is the appellant against a con - firming judgment in a suit to set aside the auction sate held in Execution Case No. 128 of 1975 and for recovery of possession.

(2.) THE plaintiff's case, in brief, is that Ac. 1. 07 decimals of land in Mouza Rampur had been allotted to the plaintiff's share in the partition suit bearing No. O.S, No. 70 of 1965 -1. The said suit on being transferred to the Munsif, Bhadrak numbered as O.S. 168/66 -I. The plaintiff had no knowledge about the aforesaid suit as she was staying with her son -in -law but she was informed by one Sudharnani Das that her property had been auctioned and sold in the Court of the Subordinate Judge, Bhadrak. The plaintiff then came to Bhadrak and made some enquiry and found that for realisation of the commissioner's fee in the aforesaid partition suit an execution case had been levied bearing Execution Case No. 128/75 and in that execution proceeding the property has been sold and purchased by defendant No. 1 in the Court sale. It is averred in the plaint that she was an old Pardanashin helpless lady who was staying with her son -in -law and had no notice about the dues of the commissioner nor was she ever called upon to deposit the fees of the survey -knowing commissioner. It was further alleged that in the Execution proceeding the property had not been attached and yet the property was put to sell. According to the plaintiff's case she was totally ignorant about the execution case having been levied for realisation of the commissioner's dues and no notice of the said execution proceeding had ever been served upon him. According to the plaint case defendants 3 and 4 are grossly enemical towards the plaintiff and have been trying to drive out her of the village and, therefore, they gained over the Court peon and got false report prepared in connection with the service of notice in the execution case as well as in the matter of attachment and sale proclamation and the Court sale was accordingly vitiated being tainted with fraud. With these allegations she filed the suit for the relief as already stated.

(3.) ON these pleadings the trial Court framed four issues and on issue No. 3 came to hold that the plaintiff did not take any steps to deposit the fees of the commissioner (defendant No. 2) even though she came to know about it two or three days prior to the Court sale. Further she had miserably failed to establish that the sale was tainted with fraud. With the aforesaid findings the suit having been dismissed the plaintiff carried the matter in appeal.