RAMCHANDRASINGH Vs. ARUN PRAKASH PANDEY ALIAS BACHCHA PANDEY

JUDGEMENT

(1.) This is plaintiff's First Appeal From Order (M.A) dated 19-4-1994 passed by the Third Subordinate Judge, Motibari, rejecting the application for grant of temporary injunction in a suit filed by the present plaintiff-appellant for cancellation of the decree alleged to have been obtained in collussion and fraudulent manner (including an order of this Court in Civil Revision No. 1700 of 1990).

(2.) The cases of the appellant has got chequered history. The present plaintiff-appellant Ram Chandra Singh is an auction purchaser in execution of decree in favour of the State Bank of India, Motihari Branch in Mortgage Suit No 88/9 of 1977/80 for recovery of the outstanding dues to the tune of Rs. 1, 15, 312 32 Paise against Arun Prakasb Pandey (respondent No. 1), who had obtained an agricultural loan of Rs. 68, 320/-, but failed to pay the same in time. Consequently the State Bank (respondent No. 10) filed a suit for recovery of the amount along with interest, which was decreed and the property of respondent No. 1 was put on auction sale and the appellant purchased the same at the auction sale.

(3.) In execution of decree Smt. Savitri Devi (respondent No. 9), sister of Arun Prakash Pandey filed an application under Section 47 of the Civil Procedure Code (for short "the Code") with a prayer that the execution of the decree was erroneous against Arun Prakash Pandey, treating the entire property to be bis sole property, as she and her sisters were also co-sharers in the property, as the father of Arun Prakash Pandey had died in 1958 after enforcement of the Hindu Succession Act, 1956. Hence the objector Smt, Savitri Devi (respondent No. 9) was also heir along with Arun Prakash Pandey (respondent No. 1) and her share in the joint property may not be put on auction sale. That application was rejected and against that order a Civil Revision No. 1700 of 1990 (Smt Savitri Devt v. State Bank of India) including this appellant was filed in this Court, which came up for hearing before the Hon'ble Brother Nagendra Rai (for whom I have got all regards). The aforesaid Revision was allowed by order dated 21-5-1992 and the application under Section 47 of the Code was also allowed. It was held that as Smt Savitri Devi and others, being sister of Arun Prakash Pandey, judgment debtors, were also heits and it was joint property, hence any portion of the property need not be put on auction, sale, nor even the alleged share of Arun Prakash Pandey could be put to auction sale, nor the appellant was justified in purchasing it. It was further observed unless the suit for partition was, filed and the share of the parlies, including the share of Arun Prakash was specified, after preparation of the preliminary decree and final decree, the execution of the decree cannot proceed.