KAMESAR SINGH Vs. HANUMAN PRASAD

JUDGEMENT

(1.) This is an application by two persons, Kamesar Singh and Srimati Madhu Rani, who objected to the sale of certain properties in execution case No. 4 of 1961 pending in the court of the first Additional Subordinate Judge, Gaya. Applicant No. 1 prayed for release of the property mentioned in schedule 1 of the execution petition and applicant No. 2 prayed for release of the property mentioned in schedule 2 of it. The decree-holders proceeded with the execution in respect of the decree for costs. The properties in schedules 1 and 2 were duly attached and were actually auction sold on the 5th September, 1962, the purchasers being the decree-holders. The case of the petitioners, however, was that they obtained title to these properties under three registered sale deeds, two of them being dated the 2nd February, 1961. for Rs. 2000 each and the third is dated the 7th February, 1961 They claimed to be in peaceful possession of the property by virtue of the sale deeds in their favour as owner's Hence, they prayed that the properties attached in the execution of the decree should be released from attachment. The decree-holders filed a rejoinder alleging that the Judgment-debtors were not in possession of the properties attached and sold, and the sale deeds were sham, collusive and farzi transactions.

(2.) The learned Additional Subordinate Judge, on a consideration of the evidence led by the parties, came to the conclusion that the objectors had interest in the properties sought to be attached and that the properties were not bound under the decree; and, as such, they should be released from attachment. Coming to this finding, however, the learned Additional Subordinate Judge did not allow the application of the petitioners but held that they were not entitled to an order of release as auction-sale in the execution case was already held on the 5th September, 1962, so that on the 25th May, 1963, when the application was being disposed of by the learned Additional Subordinate Judge, he had no jurisdiction to pass an order in favour of the objectors in view of a decision of this Court reported in 1962 BLJR 291 : (AIR 1962 Pat 403), Janki Mohan v. Dr. S. Samaddar. Hence, this petition to this Court.

(3.) Mr. Gauri Shankar Prasad, appearing in support of this application has contended that the learned Additional Subordinate Judge having come to the conclusion that his clients had interest of their own in the properties under attachment and that he would not enter into the question of benami nature of the transaction in a proceeding under Order 21. Rule 58, Code of Civil Procedure, should have ordered the properties to be released. The only obstacle in the way of an order being passed in favour of the petitioners was the pronouncement of the Judgment of this Court in (1962 B.L.J.R. 291) : AIR 1962 Pat. 403. Learned counsel contended that the learned Additional Subordinate Judge was in error in taking that view because the facts of that case were distinguishable. In that case, the sale in favour of the opposite party was held prior to the application filed by the petitioner as in that case the sale of the property in question took place on the 11th November, 1957, whereas the application for release from attachment that the petitioner filed in court was made on the 26th November, 1957, clearly a fortnight after the date of sale, although the sale was not confirmed on that date The objection under Order 21, Rule 58 was accordingly dismissed and the order had become final. Learned counsel has contended that the other facts of the case are not relevant to be gone into. It is no doubt true that an observation was made with reference to the decisions in the cases of Sasthi Charan Bis-was Banik v. Gopal Chandra Shah. 41 Cal WN 845 (AIR 1937 Cal 390) and Mt. Puhupder Kuar v. Ramcharitar Barhi, AIR 1924 Pat 76 that where the sale had actually taken place, the executing court had no jurisdiction to entertain the claim under Order 21, Rule 58 of the Code although the application might be made prior to the sale and although the sale might not be confirmed. It is true that a view different from this was adopted by the Madras High Court in the case of C. Jagannadham v B Pvdayva ILR 55 Mad 251 : (AIR 1931 Mad 7821 referred to by the learned Judges in Sasthi Charan Biswas Banik's case, 41 Cal WN 845: (AIR 1937 Cal. 390) but this is a mere obiter dictum inasmuch as the facts in that case are clearly distinguishable and the question arose as to the propriety of an application under Order 21. Rule 58 of the Code as also an application under Section 151 of the Code. The contention of learned counsel appears to be correct; and Mr. Lakshman Saran Sinha fairly conceded that he does not rely upon this decision in support of his opposition to the prayer in the petition.