TRIBENI MISSIR Vs. GOPAL MISRA

JUDGEMENT

(1.) The controversy in this case arises out of a court sale held on the 21st March, 1956 in Execution Case No. 387 of 1955 wherein a decree under execution was a money decree passed in Money Suit No. 152 of 1950 on the 24th July, 1952, in favour of the appellant against one Jagdish Missir, father of plaintiffs 1 to 3 and husband of plaintiff No. 4 who are respondents here. It appears that in the execution petition four plots were given in Taliqua. They were plot Nos. 2014 and 2034 of khata No. 107 and 2039 and 2042 of khata No. 113. Subsequently, attachment also seems to have been effected against all these four plots. But the main controversy now raised is whether plot No. 2042 was included in the sale proclamation or not.

(2.) The case of the plaintiffs is that it was not included and the sale subsequently held on the 21st March, 1956, in respect of half of this plot 2042 was brought about fraudulently, though the same was not included in the sale proclamation. According to the plaintiffs, therefore, such a sale is void and nullity in law. Hence the suit for the declaration that the court sale held with respect to 1.48 acres of land of plot No. 2042 of khata No. 113 in Execution Case No. 387 of 1955 by the Court of Munsif, Aurangabad, was a nullity and void, and that the plaintiffs' title thereto remained unaffected by the said sale as also for recovery of possession ot the said land. It may be stated here that after the court sale of the 21st March, 1956, which was confirmed on the 21st May, 1956, delivery of possession of the land in dispute along with other lands auction sold was given to the defendant-appellant on the 28th July, 1956. Subsequently a miscellaneous case bearing No. 335 of 1956 was also filed on the 7th August, 1956, by the plaintiffs for the relief that the sale of the land in suit was void. This miscellaneous case was on contest ultimately dismissed on the 14th December, 1956, on the ground that the same was barred by time. Thereafter the present suit for the reliefs, as already stated above, was instituted by the plaintiffs on the 4th July, 1957.

(3.) In defence a number of pleas were set up. Further it was also pleaded that the aforesaid plot No. 2042 was included in the sale proclamation, and that the same was properly served at the site of the property. Lastly, it was also stated in the written statement that the story of fraud as averred in the plaint was altogether false.