SHYAMANANDA MOHAPATRA Vs. GOPAL SAHU

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for declaration of title and confirmation of possession of three acres of land in Khata nos. 39 and 51 of village Sadeipur. The plaintiff's case is that he purchased the suit property in execution of a money decree against defendant No. 4 on. 21-1-1935 in M. S. No. 487 of 1927 and obtained delivery of possession through court on 15-8-1936. It is said that the property had been attached before judgment under Order 38, Rule 5 of the Civil Procedure Code. The contesting defendant No. 1 claims to have purchased the same property at an execution sale held at the instance of the landlords, who are defendants 2 and 3 and had obtained a rent decree. The main contest between the parties therefore is confined to the question as to who has got priority of title as between the two competing court sales.

(2.) Admittedly Defendant No. 1's purchase was on 30-5-1934 while the plaintiff's purchase was on 21-1-1935. Both the Courts below have concurrently held that the decree in execution of which defendant No. 1 purchased the suit property was a money decree and did not have the effect of a rent decree. They have also concurrently held that the attachment before judgment relied on by the plaintiff has not been proved and that the plaintiff cannot claim priority of title on that ground.

(3.) The only point that has been argued at some length before me is whether the attachment before judgment alleged to have been effected at the instance of the plaintiff can be said to have been proved, on the evidence produced by either party. The plaintiff alleged in paragraph 3 of his plaint that the properties had been attached before judgment and the defendant put him to proof of the alleged attachment and specifically denied that there had been any such attachment or delivery of possession through Court. It is also admitted that much of the evidence relating to the proceedings which culminated in the attachment in the earlier suit is not available as the records concerned have all been destroyed. The plaintiff has therefore relied upon Ext. 3, the notice under Order 38, Rule 5, Civil P. C., and Ext. 4, an order of the Court, to show that a claim case had been preferred and rejected. He has also re-lied on Ext. 2 of the year 1927, which is a compromise petition (rafanama) filed by the plaintiff and the judgment-debtor. The contention on behalf of the appellant- plaintiff is that in view of the fact that a notice under Order 38, Rule 5, Civil P. C., had, in fact, been issued and served, and that a claim had been preferred to the attachment by a third party terminating in an admission by the judgment-debtor there had really been an attachment before judgment and that it should be presumed that tlie notice under Order 21, Rule 54, Civil P. C., as given in Form 24 of Appendix E was issued.