NARAYAN DUTT CHOUBEY Vs. HARDEO CHOUBEY

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against a judgment and decree dated the 19th August, 1958 passed by the learned Subordinate Judge, Second Court, Arrah, dismissing their suit for a declaration that the order dated the 21st July, 1952, setting aside the auction sale held on the 6th of June, 1938, passed by the Munsif First Court, Buxar, in Miscellaneous Case No. 182 of 1951 was null and void as being illegal and fraudulent and for a permanent injunction against defendant No, 1 from acting in furtherance of that order,

(2.) According to the plaintiffs' case, the landlord--Dumraon Raj--had instituted a rent suit being no. 566 of 1936 for recovery of rent in respect of a holding belonging to the family of the defendants and having obtained a decree, had put the same in execution in Execution Case No. 1083 of 1937. Thereafter, the entire holding was put to sale in execution of the said decree, and the landlord decree-holder purchased the same on the 6th of June, 1938 and took delivery of possession over the same on the 15th of February, 1939. The plaintiffs claimed to have taken settlement of the holding from the Dumraon Raj through a registered patta dated the 12th of December, 1940 and to have come and continued in possession over the said holding ever since then.

(3.) The defendants with a view to somehow get back the land which once belonged to their family filed a petition under Order 21, Rule 90 of the Code of Civil Procedure and, having got the notices of that proceeding suppressed by bringing the court peons in their collusion, fraudulently obtained an ex parte order from the court in their favour on the 21st of July, 1952 setting aside the auction sale held on the 6th of June, 1938 in Execution Case No. 1083 of 1937. In the circumstances it was alleged by the plaintiffs that they had no knowledge about the proceeding under Order 21, Rule 90 of the Code of Civil Procedure, and they came to learn about it for the first time on the 8th of October, 1954 when the defendants filed a certified copy of the order in a revenue case at Ballia, whereupon they instituted the suit, out of which this appeal arises for the reliefs mentioned above.