S.K. YUSUF Vs. MD. AWESH

JUDGEMENT

(1.) Petitioner in this writ petition has challenged the order dated 15.10.2004 passed by learned Ad hoc Addl. District & Sessions Judge F.T.C. No.IV, Cuttack in F.A.O. No. 93 of 2003 confirming the order dated 29.7.2003 passed by learned Civil Judge (Sr.Divn.), 1st Court, Cuttack in CMA No. 219 of 1999.

(2.) The facts leading to the present writ application are as follows:-

(3.) Learned counsel for the petitioner submitted that the money receipt which was marked as Ext.1 dated 21.7.1996 is a valid document which proves that the agreement was entered into much prior to the date of attachment i.e. 28.1.1999 and by virtue of such agreement since possession was delivered in favour of the petitioner and petitioner is a bonafide purchaser, the property as claimed should have been adjudicated by the trial court. It reveals from the sale deed that that the vendor has obtained permission from the competent authority to sale the land. The said permission was applied for much prior to the execution of the sale deed and after obtaining the permission, the sale deed has been executed which has not been considered by the court below as such the finding of both the courts below is perverse and are liable to be set aside for non-consideration of the material facts. He further submitted that the land in question being assessed for payment of revenue to the Government, the proclamation of attachment notice must be affixed in the office of the Collector of the district in which the 5 land situates. In the present case the same has not been done and therefore the attachment was not proper and sale deed is valid. The decree holder was only got a decree for realization of money as the judgment debtor has other property those properties should have been attached and the decree holder is entitled to release his money i.e. Rs.45,000/- as per the decree with interest only. Since both the courts below have also not considered the same, the impugned order is liable to be set aside. In support of his contention, he has placed reliance on the decisions reported in 1973 AIR(Cal) 432 1990(1) OLR (S.C.) 410, 2008 AIR(SC) 2069 and also (35) AIR(1948) Mad 191, Murugappa Chettiar Vrs. Thirumallia Nadar and others.