AKSHAYA KUMAR MANDAL Vs. BINOD KUMAR SINHA

JUDGEMENT

(1.) The undisputed facts as mentioned in the judgment of the lower appellate court are these A house situate in the town of Monghyr bearing Municipal holding No. 223 belonged to Dayanand Purbey, opposite party No. 2 in the Civil revision and respondent No. 2 in the miscellaneous second appeal Akshaya Kumar Mandal, the petitioner in the civil revision and the appellant in the appeal, filed Monev Suit No. 64 of 1952 against opposite party No. 2 for realisation of Rs 13,000 and odd He finally got a decree on the 26th November 1959. He put that decree in execution in Execution Case No. 4 of 1960 The holding aforesaid was attached in execution of that decree on the 11th February, 1960. The petitioner purchased it for Rs. 4,000 on the 13th July, 1960 (the year 1961 mentioned in the judgments of the Courts below is a mistake). Eventually the sale was confirmed and the petitioner obtained delivery of possession also on the 27th May, 1962

(2.) Binod Kumar Sinha, who is opposite party No. 1 in the civil revision and respondent No. 1 in the appeal, was a usufructuary mortgagee of the property bearing holding No. 223 for Rs. 7,000. The mortgage had been executed by opposite party No. 2 in his favour, but the latter remained in actual occupation of the house as the tenant of the former Since rent was not paid, opposite party No. 1 obtained a decree for arrears of rent against opposite party No. 2. The decree was put in execution in Execution Case No. 217 of 1957. In this execution case also the holding was attached on 28-2-60. 17 days after it was attached in Execution Case No. 4 of 1960 filed by the petitioner against the same judgment-debtor.

(3.) Now conies the curious history of the case. When the petitioner obtained delivery of possession on the 27th May. 1962 over the house in question, opposite party No. 1 received Rs. 7,000, his mortgage dues, in full from him, made the endorsement on the usufructuary mortgage bond clearly stating therein that he had received the sum of Rs. 7,000 from Akshaya Kumar Mandal, the auction purchaser of the house. Thus, the petitioner became the full owner of the house after haying purchased it for Rs. 4,000 in the auction sale, and, after having paid Rs. 7,000 to opposite party No. 1. He got unobs-structed delivery of possession, not symbolical but actual, on the 27th May, 1962, after having spent a sum of Rs. 11,000 in acquiring the property. In spite of the clear knowledge of opposite party No. 1 that the petitioner had purchased the property and had got actual delivery of possession after redeeming the mortgage, it is strange that in his Execution Case No. 217 of 1957, opposite party No. 1 got the house sold again on 29-5-62, two days after the delivery of possession in favour of the petitioner, for a sum of Rs. 1,000, the amount of his decretal dues.