MANNA SINGH ALLAH SINGH Vs. WASTI RAM SARAF

JUDGEMENT

(1.) This is a first appeal directed against the judgment and decree of Sub-Judge 1st Class, Amritsar, dated the 5th May, 1952, in a suit filed under Order 21, rule 63 of the Code of Civil Procedure.

(2.) The facts giving rise to this appeal are that the property in dispute, six shops on G. T. Road, Amritsar, were sold by Manna Singh to Jodh Singh for a sum of Rs. 24,800/- under a registered deed of sale. A sum of Rs. 15,800/- was paid before the Sub-Registrar and the balance remained in the trust with Jodh Singh, and had to be paid to the vendor within two months of the registration of the deed. In execution of a money decree obtained by Wasti Ram against Jodh Singh, these six shops were attached. Objection were raised tot he attachment by Manna Singh under Order 21 Rule 58 of the Code of Civil Procedure on the 21st of March, 1951, to the effect that the property was subject of a charge of Rs. 9000/-. This application was dismissed by the executing Court on the 26th of March, 1951, on the ground that the objection had been designedly and unnecessarily delayed. The next day the auction took place and the shops were purchased by Shiv Parkash, Defendant No. 3.

(3.) The present suit was filed on the 12th of April, 1951 under Order 21 rule 63 for a declaration that the plaintiff is in possession of the shops as a mortgagee and that the auction sale held on the 27th of March, 1951, in execution of Wasti Ram Defendant No. 1's decree against Jodh Singh defendant No. 2 being without reservation of mortgagee's rights is not valid and that Shiv Parkash defendant No.3, the auction-purchaser, was not entitled to take possession of the aforesaid shops without liquidating the charge on them. Defendant No. 2 the judgment-debtor, did not appear and we proceeded against ex parte. Defendants Nos. 1 and 3, the decree-holder and the auction-purchaser respectively, contested the suit. The decree-holder's defence was that the property belonged to the judgment-debtor and was not subject to any charge. It was also pleaded that the suit did not lie in the present form. Defendant No. 3 in his defence raised the plea that the suit had not been properly stamped for the purposes of Court-fee and jurisdiction. He also denied the charge on the property and in the alternative pleaded that if there was any charge, it had been paid off. And further that if there was a subsisting charge, defendant No. 3 is not liable for the same as he is a transferee for consideration without notice of the charge and is protected. On the pleadings of the parties, the following issues were framed:-