K RAJA GOPAL RAO Vs. DOLGOBINDA SAHU

JUDGEMENT

(1.) DEFENDANT No. 2, who was a claimant in a proceeding under Order XXI, Rule 58, c. P. C. has brought this second appeal against the judgment and decree-dated 262-1954 of Sri K. C. Mohapatra, Subordinate Judge of Cuttack, dismissing the appeal on. a preliminary issue as the persons vitally interested in the appeal were not made party-respondents.

(2.) THE suit out of which the present appeal arises was one under Order XXI, Rule 63, C. P. C. the plaintiff being the decree-holder who was unsuccessful in the Claim case brought by the present defendant No. 2, appellant, under Order XXI, Rule 58 c. P. C. The plaintiff and defendant No. 4 obtained a money decree on 23-2-1943 for a sum of Rs. 3582/8/3, when the properties in suit were attached by the plaintiff, a claim was put forth by the present defendant No. 2, which being allowed the plaintiff brought, the suit.

(3.) DEFENDANT No. 1 is the judgment-debtor. Defendants 3 and 3-Ka are the zamindars. Defendant No. 4 is the joint decree-holder along with the plaintiff. The plaintiff's case is that defendant No. 1, the judgment-debtor, made a wilful default in the payment of rent and being in collusion with the zamindars brought the properties in suit to sale and an execution of a sale decree for rent defendant No. 2 was the purchaser. The plaintiff's assertion is that the sale was a sham transaction; the real purchaser was the judgment-debtor, defendant No. 1 himself. So the plaintiff is entitled to proceed in execution against the properties in suit.