SANYASI BEHERA Vs. ONARASI ALIAS VARANASI KANTAMMA

JUDGEMENT

(1.) AGAINST one order both the miscellaneous appeal and the civil revision have been filed. It is the common case of the learned advocates that miscellaneous appeal lies and the civil revision does not lie. The civil Revision is accordingly dismissed.

(2.) THE facts arising in this appeal may be stated in brief. On 58-12-58 defendants 1 and 2 and the husband of defendant 3 executed a registered sale deed (Ex. 1) in favour of defendant-4, the claimants under Order 21, Rule 58, C. P. C. One satyabadi Panda attached the disputed property in E. P. 82 of 59 in execution of a decree against defendants 1 to 3. Defendant 4 filed an objection under Order 21, Rule 58, C. P. C. which was dismissed on 20-10-60. On 11-1-61 defendant 4 filed title Suit No. 7 of 62 (T. S. No. 5 of 61 B. M. C.) under Order 21, Rule 63, C. P. C. as well as for declaration of title and for vacating the attachment effected by satyabadi Panda. On. 9-8-61 defendants 1 to 3 executed an agreement for sale of the disputed house in favour of Sanyasi Behera. Sanyasi filed T. S. 44 of 62 on 148-62 making defendants 1 to 4 as parties. On 22-12-62 T. S. No. 7 of 62 was decreed in favour of defendant 4 declaring his title over the suit property as against defendants 1 to 3 (Ex. 3) and a decree (Ex. 3/a) was passed to the same effect on 7-1-63. It is to be noted that originally satyabadi Panda was a party to the suit. As during the pendency of the suit his claims were satisfied by defendants 1 to 3, the attachment was raised and his name was expunged. On 22-8-63 T. S. No. 44 of 62 was decreed ex parte for recovery of Rs. 2260/- against defendants 1 to 3 and dismissed against defendant 4. In execution of his money decree, Sanyasi (plaintiff) attached the disputed property. Defendant 4 filed an application under Order 21, Rule 58 urging that he had purchased the property from defendants 1 to 3 under Ex. 1 and that it was not liable to attachment and sale in execution oi the decree (Ex. A) of the plaintiff against defendants 1 to 3 in T. S. No. 44 of 62. The learned Subordinate Judge by his order dated 20-2-65 held that Ex. 1 was a sale and not a mortgage. Accordingly he upheld the objection of defendant 4. Against this order the miscellaneous appeal has been filed.

(3.) IN support of the appeal Mr. Misra contended that Ex. 1 was a mortgage by conditional sale executed by defendants 1 to 3 in favour of defendant 4, and, as such, the equity of redemption was liable to attachment and sale in execution of sanyasi's money decree. Mr. Rath on the other hand contended that Ex. 1 was a sale with a condition to repurchase and not a mortgage by conditional sale. He took up another point which was not urged in the Court below that by virtue of the judgment and decree (Exs. 3 and 3a), defendant 4's title to the property as against defendants 1 to 3 was declared on the basis that Ex. 1 was an out and out sale. Defendants 1 to 3 having no further interest, the disputed property was not liable to attachment on 6-1-64 in execution of the decree in favour of Sanyasi in T. S. No. 44 of 62. It is conceded by the learned Advocates for both parties that if Mr. Rath succeeds in the second point, it would not be necessary to examine whether Ex. 1 is a sale or mortgage.