GAYA THAKUR Vs. BHAGWAT PRASAD SHARMA

JUDGEMENT

(1.) Defendant Mo. 1, who is the appellant, had obtained a money decree against defendant No, 2 in Money Suit No. 206 of 1949 on the 19th of February, 1S51, and had levied an execution of the same in Execution case No. 316 of 1954, When he had applied for sale of the suit properties, an objection was raised by the plaintiff under Order 21 Rule 58 of the Code of Civil Procedure on the ground that he had purchased the properties for Rs. 2500/- from defendant No. 2 by a registered deed of sale on the 22nd of February, 1955, and had come in possession of the same. The judgment-debtor (defendant No. 2). having no interest in those properties, they could not be brought to sale to satisfy the decree against him (defendant No. 2). This claim of the plaintiff was overruled and he, therefore, brought a suit under Order 21 Rule 63 of the Code of Civil Procedure for declaration of his title to and for release from attachment and sale of the properties. It should be mentioned here that while the money suit of defendant No. 1 against the father of defendant No. 2 was pending, the former (defendant No. 1) had obtained an order for attachment of some of the suit properties before judgment on the 16th of February, 1949, and that was made absolute on the 22nd of February, 1950. In the case for the execution of the money decree, that attachment continued, and on that basis defendant No. 1's contention was that the sale by defendant No. 2, the judgment debtor, in favour of the plaintiff was void under Section 64 of the Code of Civil Procedure.

(2.) The main issue in the suit was:

(3.) For the appellant, it was contended that of the suit properties, survey plots 112, 422, 135, 3035 and 3041 had been validly attached before judgment in his money suit against defendant No. 2's father, and that attachment continued in Execution Case No. 316 of 1954 where he had applied for sale of the attached properties to satisfy his decree. It appears from the judgment of the trial Court that Ext. E, the order-sheet of Money Suit No. 205 of 1949, showed that the attachment was served and notice was issued to the defendants of the money suit to show cause; no cause, however, was shown and the order of attachment was made absolute. There is no dispute that there had been an attachment and it was in the prescribed form No. 5 given in appendix F, Schedule I of the Code of Civil Procedure. An objection of the respondent (the plaintiff) was that in that form of attachment there was no order prohibiting the defendants to transfer or charge the property specified in the schedule thereto annexed by sale, gift or otherwise, nor there was any prohibition to other persons from receiving the same property by purchase, gift or otherwise. It was urged that Rule 7 of Order 38 provided: ,