BALMAKUND Vs. FIRM PIRTHIRAJ GANESH DAS

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit in which a declaration was sought that the execution sale of the properties which are the subject-matter of the suit was null and void and that the defendant firm had acquired no title to them by virtue of the purchase at the court sale. There was also a prayer for recovery of possession of the properties in question in case the plaintiff was found to be out of possession. The decree in execution of which the properties were sold had been obtained by the firm Pirthiraj Ganesh Das (the respondent in this appeal) against the firm Ganpatrai Balabux in Suit No. 56 of 1926 of the Original Side of the Calcutta High Court, and on leave having been obtained from that Court, according to the provisions of Sub-rule (2) of Rule 50 of Order 21, Civil P.C., and on the decree having been transferred to the Ranchi Court, it was executed in that Court against the appellant, and the properties in suit were sold on 3-9-1936 and purchased by the respondent firm who were the decree-holders. Thereafter this appellant filed an application under Order 21, Rule 90, Civil P. C., for setting aside the sale, but his application was dismissed after contest by the respondent. He then instituted the suit out of which this appeal arises and sought to impugn the sale on various grounds.

(2.) The defendant firm resisted the plaintiff's claim and contended that the sale at which they had purchased the properties was a valid sale and that the present suit was barred according to the provisions of Order 21, Rule 92 (3), Civil P, C.

(3.) The appellant in this Court was constrained to abandon the several contentions which he had pressed with vehemence in the Court below, and his counsel confined his argument only to the following two points : (1) That there was no decree against this appellant at all and his separate properties could not, therefore, be sold in execution of that decree; and (2) that the executing Court had no jurisdiction to sell the properties in question, because no notice had been issued by it according to the provisions of Order 21, Rule 22, Civil P. C.