RAMESHWAR PD CHOUDHARY Vs. RENUKA MITRA

JUDGEMENT

(1.) THIS Miscellaneous Appeal is directed against the order dated 18.1.1996 passed by Subordinate Judge Ist, Siwan in Miscellaneous Case No. 16 of 1975 arising out of Execution Case No. 7 of 1970. whereby he has allowed the review petition filed by respondents Renuka Mitra and others for review of the order dated 9.2.78 dismissing Miscellaneous Case No. 16 of 1975 and set aside the auction sale and delivery of possession in Execution Case No. 7 of 1970 and ordered that half share of the applicants in the suit properties be restituted to them through the process of court.

(2.) APPELLANT Rameshwar Prasad Choudhary and others, who were opposite parties in the said Miscellaneous Case has challenged the said order in this appeal.3.The brief facts of the case are as follows: One Shambhu Prasad filed Mortgage Suit bearing Title (Mortgage) Suit No. 1 of 1962 / 6. of 1964 for redemption of mortgage against Bishwanath Prasad and Bhagwat Prasad. On 31.7.1965 a preliminary decree was passed in the said suit by the Subordinate Judge III, Chapra and by the said decree, the defendants were ordered to pay Rs. 66,655.45 naie paise to the plaintiff and in case of default the plaintiff was given liberty to pray for final decree for sale of mortgaged property. Thereafter the decree -holder Shambhu Prasad filed an application for preparation of final decree as the judgment debtors defaulted in payment of money. After that Shambhu Prasad assigned decree by a registered deed of assignment dated 14.5.1966 in favour of appellant Rameshwar Prasad Choudhary and accordingly, the appellant was made party in final decree and on 22.9.1966 final decree for sale of mortgaged property was passed. Thereafter on 19.5.1970 the decree -holder filed Execution Case No. 7 of 1970 in the court of the Additional Subordinate Judge III, Chapra in which notices under Order 21 Rule 54 of the C.P.C. were issued and the land appertaining to plot Nos. 5154, 5155 and 5158 comprising an area of 1 bigha 14 kathas 19 dhurs was attached. In the meantime, on 15.12.1975 Misc. Case No. 16 of 1975 was filed by Renuka Mitra and others under Sec. 47 of the C.P.C. praying therein to release the abovementioned property and to dismiss the execution case but by order dated 9.2.1978, the learned Sub Judge, Siwan dismissed the miscellaneous case.

(3.) IT has been argued by the learned Advocate of the appellant that the learned Subordinate Judge has committed error in law as well as on facts in holding that Smt. Renuka Mitra, Nityanand Mitra and Gautam Mitra, the vendors of Anjana Dubey respondent No. 4 had half share in plot Nos. 5154, 5155 and 5158, and so their joint interest in the property cannot be put on auction sale. He further argued that there was sufficient material/evidence on record to hold that the properties had already been partitioned between Bishwanath Prasad and Bhagwat Prasad on the one hand and Smt. Renuka Mitra, Nityanand Mitra and Gautam Mitra on the other hand but the learned Subordinate Judge ignored all those evidence and due to that, he arrived at wrong conclusion that as the vendors of Anjana Dueby had half share in the property which was auction sold, as such the auction sale is liable to be set aside. He Submitted that the impugned order is perverse and is not based on materials available on record and as such, the same should be set aside.