MEHRUNISHA Vs. TRILOK SINGH

JUDGEMENT

(1.) - This civil revision application is directed against the judgment and order, dated 76. 1991, passed in miscellaneous Appeal No. 16 of 1990. by the learned District Judge, West Champaran, Bettiah. whereby he has set aside the order, dated 14. 6. 90, passed in Miscellaneous Case No. 28 of 1982, by the learned Munsif, setting aside the sale under Order XXI Rule 90 of the Code of Civil Procedure.

(2.) THE predecessor-in-interest of the petitioners, namely. AN Sher Khan, filed a petition under Order XXI Rule 58 read with Rule 90 of the Code of Civil Procedure, in the court of Munsif, Bettiah, praying therein to release the property detailed in Schedule 1, namely, Plot No. 1636p, appertaining to Holding No. 420. measuring an area of dhurs, situate in Mohalla Purani Gudari, within the Bettiah Municipality, on the ground that he had purchased the said land through a registered sale-deed, dated 23. 9. 71 for a consideration of Rs. 3. 000/-from one Mahadeo Prasad Patel. who had been originally made opposite party no. 2, who died during the pendency of the case and his widow, Mostt Sudama Devi, opposite party no 2, and others were substituted in his place Prior to the aforesaid sale-deed, said Mahadeo Prasad Patel on 7. 6. 1979, had executed a registered usufructuary morgtage deed in favour of one Chandan Prasad for a consideration of Rs. 800/-, which has subsequently redeemed and, accordingly, the applicant-petitioners came in possession of the aforesaid Sche-dule 1 land, and since then having paying rent against receipts to the Municipality. It is further alleged that the petitioners had no knowledge of Execution Case No. 110 of 1971 and the opposite party no. 1. namely, Trilok Singh, purchased the property, in question, by suppressing all the processes of the court by bringing the Process-Servers in his col-lusion and. accordingly, he sold the land in favour of opposite party no. 1 in Execution case No. 110 of 1971 is not binding upon thorn because no notice of any kind was ever served upon them until on 15. 7. 82. when the petitioners, for the first time, came to know about the decree passed in favour of opposite party no 1 and the execution case arising therefrom In pith and substance the case of the petitioners is that the disputed property colud not have been auction-sold in the execution case, inasmuch as neither the property belonged to the judgment-debtor not the property was under attachment prior to the execution of the sale-deed. 2. In opposite, Opp. Party No 1 appeared and contested the case on the ground, intre alia, that the petitioner under order XXI Rules 58 and 90 of the Code of civil Procedure, is hopelessley barred by limitation, inasmuch on 6 2 1902. the original opposite party no. 2. namely, said mahadeo Prasad Patel executed a mortgage deed in his favour with respect to the land, in guestion measuring 1 Katha 10 dhurs for a sum of Rs 3,500/- Opposite party No 1 Trilok Singh, filed a suit, namely mortgage Suit No 52 of 1967, against the said Mahadeo Prasad Patel. opposite party no 2. which was ultimately compromised on 24 7. 70 wherein it was agreed that the said Mahadeo Prasad Patel shall pay a sum of Rs. 6000/- by way of principal and interest accured thereon before 31. 12. 70 and it was also agreed that there was no necessity of preparing any final decree. Since the said Mahadeo Prasad Patel failed to pay the agreed amount in terms of the compromise, opposite party no 1 filed Execution Case no. 110 of 1971 on 23. 8. 71 before the court of Munsif, Bettiah. After having complied with the formalities and after processes were served at various stages, the property was ultimately auction sold on 12. 4. 73. Opposite Party no. 1 further pleaded that the original petitioner, namely, Ali Sher Khan and the original opposite party were having a good relation and the petitioners had full knowledge about the mortgage as well as the compromise decree including the execution case, they fraudulently brought into existence the Farzi sale deed, dated 23. 9. 71 It has been further alleged that he had no knowledge regarding the mortgage deed of Chandan Prasad nor he had the knowledge about the redemption of the mortgage deed. It has been further alleged that the suit was filed on the basis of the simple mortgage and the question of attachment of the property did not arise. It has been further stated that the petitioner have falsely alleged that, tor the first time they came to know about the execution case and the sale of the property only on 15. 7. 82. On the contrary, the petitioners were aware of the pendency of the execution case and even then, they purchased the land in guestion in collusion with the judgment-debtor in order to deprive the opposite party from the usufruct of the decree

(3.) ON the pleadings of the parties, the learned Munsif framed the issues