BHALLE CHAND Vs. TEJ RAJ

JUDGEMENT

(1.) THIS is a Civil Second Appeal preferred by Bhalle Chand and Ukh Chand against the judgment and decree passed in appeal by the Civil Judge, Jalore, on December 5, 1967, by which the judgment and decree of the Munsiff, Jalore, dismissing the suit of the appellants under Order XXI Rule 63, CPC was upheld and maintained.

(2.) THE brief facts giving rise to this second appeal may be briefly stated as follows : Tej Raj and Babu Lal plaintiff -respondents obtained a money decree against Kojiya and Moda respondents Nos. 3 and 4 for Rs. 1681/ -, with costs, pendente lite and future interest from the court of the Munsiff, Jalore, and in execution of the decree got attached one house, i.e. 'Nohra' situated at village Balwara The appellants and Sardar Mal preferred a claim in respect of this 'Nohra' under Order XXI Rule 58, CPC on the ground that this 'Nohra' belonged to ownership and possession at the time of attachment Their claim was dismissed by the court of the execution on August 19, 1964, on the ground that it was unnecessarily delayed Aggrieved by this order, the defeated claimants i.e. the appellants and Sardar Mal filed a suit under Order XXI Rule 63, CPC to establish their title to the 'Nohra' in dispute by obtaining a declaratory decree against the respondents, In the suit filed by the defeated claimants, it was alleged that the 'Nohra' under attachment was purchased by way of a registered sale deed from its owner Kojiya, judgment -debtor, for Rs. 400/ -, on April 19, 1963, and since then the defeated claimants have been in continuous possession thereof as owners. Tej Raj and Babu Lal, respondents, hotly contested the suit filed by the defeated claimants on several grounds which are mentioned in their written -statement The main ground on which the suit was resisted was that the alleged sale of 'Noh a' in favour of the defeated claimants was made by Kojiya, judgment debtor, after the property was attached and therefore, the sale was void. In the alternative, it was further pleaded that the sale was an outcome of collusion between the defeated claimants and Kojiya, judgment -debtor, who fraudulently sold away the 'Nohra' to the appellants and Sardar, Mai with intent to defeat or delay his creditors, i.e. Tej Raj and Babulal, respondents.

(3.) WHAT would be the relief? and recorded the evidence of the parties on them The learned Munsiff then considered the entire evidence oral as well as documentary on the record and decided issues Nos. 1 and 3 in favour of the respondents' Nos. 1 and 2 white issue No. 2 was decided by him against the plaintiff -appellants Accordingly, the learned Munsiff dismissed the suit of the appellants and Sardar Mal, proforma respondent, but left the parties to bear their own costs. Aggrieved by this judgment and decree, the appellants and Sardar Mal filed an appeal in the court of the Civil and Additional Sessions Judge, Jalore. The learned Civil Judge after hearing the parties, upheld the judgment and decree of the learned Munsiff and dismissed the appeal leaving the parties to bear their own costs throughout. As against the judgment and decree of the Civil Judge, the defeated claimants have come up to this Court in Secord. Appeal During the pendency of the appeal, Bhalle Chand died and his legal representatives Smt. Choga Bai, Okh Chand & Smt. Mohan Bai were brought on the record is appellants. 4. I have carefully perused the record and hear Mr. S.N. Vyas. learned Counsel for the appellants and Mr. Jaswant Mal Bhandari, appearing on behalf of the respondents It has been contended on behalf of the appellants that both the courts below committed an error of law in dismissing the suit of the appellants although the appellants adduced satisfactory evidence to establish their title to the 'Nohra under attachment. It was further urged by Mr. S.N. Vyas, learned Counsel for the appellants, that the sale made by Kojiya judgment -debtor in favour of the appellants by way of registered sale -deed dated April 19, was neither void? nor collusive or fraudulent, button the other hand, the appellants were transferees in good faith and for consideration and so their right or title to the 'Nohra' could not be impaired by its attachment merely because Kojiya judgment -debtor gave preference to one of his creditors, i.e. the appellants to the exclusion of his other creditors, namely, Tej Raj and Babu Lal.