JAGDEO MAHTON Vs. SITARAM MAHTON

JUDGEMENT

(1.) This application has been filed by the decree-holder and it is directed against an order passed by the Execution Munsif, dated the 19th of December, 1960, by which an application filed by the opposite party under Order 21, Rule 58 of the Code of Civil Procedure has been allowed and a house has been released from attachment.

(2.) The facts necessary for the disposal of this application are as follows: On the 23rd of August, 1950, a sale deed was executed by Mosstt. Sahidan and others in favour of the opposite party named Sitaram Mahton. This sale deed was, however, registered on the 2nd of September, 1950. In the meantime, on the 29th of August, 1950, Money Suit No. 372 of 1950 was instituted by the petitioner against Mosstt. Sahidan. The house in question, which is said to have been sold to the opposite party, was attached on the 1st of September, 1950. That is to say, the house in question was attached one day prior to the day on which the sale deed was registered. In due course, the Money-Suit was decreed and execution was levied by the decree-holder. Thereafter, an application was filed by the opposite party under Order 21, Rule 58 of the Code of Civil Procedure, praying that the attached property be released from attachment, as he had purchased the property by the sale deed dated the 23rd of August, 1950. The decree-holder opposed this application substantially on the allegation that the alleged purchase was a farzi transaction. It may be mentioned at this stage, that according to the opposite party, he was in possession by virtue of the sale deed, whereas according to the decree-holder, the opposite party was not in possession. It appears that at the time of hearing of the application filed by the opposite party, the question of farzi raised by the, decree-holder was abandoned, and it was contended that as the attachment of the house had taken place on the 1st of September, 1950, and the sale deed was registered on the 2nd of September, 1950, the opposite party had no interest in or possession over the house at the time of the attachment.

(3.) The learned Execution Munsif has held, on the materials on record, that, even if the judgment-debtor was in possession of the house on the date of attachment, she was holding the property on trust for the purchaser, and, therefore, it was a fit case in which the attachment should be lifted and the property released.