TAPESHWAR MISSIR Vs. SANTOKH SINGH

JUDGEMENT

(1.) This appeal arises out of a suit under Order 21, Rule 103, Code of Civil Procedure, in which the plaintiff -appellant sought a declaration that he was entitled to possession of the house bearing municipal holding no, 3 of Ward No. 4, and Khas Mahal holding No. 517, Mohalla Thakurbari Road in the town of Dalton -ganj. Khas Mahal holding No. 517 stood recorded originally in the name of Shital Prasad. His further prayer was that it should be declared that Santokh Singh (defendant No. 1) had no right to resist the delivery of possession in favour of the plaintiff. Mt. Jitan Kuer (defendant No. 2) claimed to have title to this house under a sale deed executed in her favour by her uncle Shital Prasad. Shital Prasad died and Mt. Jitan Kuer started a probate case (no. 31 of 1951) in the Court of the Judicial Commissioner Chotanagpur. The application for probate made by Jitan Kuer was resisted by Dinesh Prasad nephew of Shital Prasad. This gave rise to a title suit between them being Title Suit No. 5 of 1952. Probate was, however, granted to Jitan Kuer on the 1st of May, 1956.

(2.) Jitan Kuer and others borrowed some money from the plaintiff, Tapeshwar Missir, for which he had to institute Money Suit No. 256 of 1952 in the Court of the Munsif of Palamu. The suit was decreed by the trial court but in appeal the decree of the trial Court was modified Inasmuch as the decree stood only against Mt. Jitan Kuer and Dinesh Prasad. While Money Suit No. 256 of 1952 was still pending, the plaintiff prayed for an order of attachment before judgment and the trial Court ordered it to be issued on the 2nd of July, 1952, and an ad interim order of attachment was issued thereafter. According to the plaintiff, this order of attachment was subsequently made absolute.

(3.) The decree obtained by plaintiff Tapeshwar Missir was put into execution by an application dated the 4th of January 1954, which resulted in Execution Case No. 2 of 1954. In execution of the decree, the property in suit was sold at auction to satisfy the decree of the plaintiff and the plaintiff purchased it on the 1st of February, 1955, for a sum of Rs. 500/ -.