PARBHU NATH PRASAD Vs. SARJU PRASAD

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for a declaration that certain property is liable to attachment and sale in execution of a decree for the plaintiffs. The allegations in the plaint were as follows:

(2.) Defendant 2-a man named Sant Prasad-used to purchase cloth from the plaintiffs firm, and on 1 June 1930 he executed a sarkhat for Rs. 8550 being the amount due from him at that date to the plaintiffs. Thereafter all business ceased between the plaintiffs and defendant 2. Subsequently, the plaintiffs instituted Suit No. 21 of 1933 and obtained a decree for Rs. 7761 against defendant 2 on 23rd May 1934. When they put their decree into execution and attached certain property as belonging to their judgment.debtor, defendant 1, namely Parbhu Nath Prasad, objected under Order 21, Rule 58, Civil P.C., alleging that he had purchased this property from defendant 2 on 4 October 1932 and it was not liable to sale. That objection was allowed and accordingly the plaintiffs instituted the suit out of which this appeal arises. They went on to allege in their plaint that defendant 1 is closely related to defendant 2, that he was not in a financial position to purchase this property, that defendant 2 was still in possession and that the deed of sale was fictitious and without consideration and was entered into by the parties thereto in collusion with each other and with a view to evade payment of the amount due to the plaintiffs. The sale deed, they contended, was never enforced, and the parties had no intention of enforcing it and therefore it was null and void and ineffectual as against the plaintiffs. They accordingly prayed for a declaration that the property in question is liable to be attached and sold in execution of their decree.

(3.) The suit was contested by defendant 1 alone. He alleged that a decree for a considerable sum of money had been passed against defendant 2 at Daltonganj in Behar and that decree had been transferred to the Court of the Civil Judge of Ballia for execution. In order to satisfy that decree, defendant 2 borrowed a sum of Rs. 800 from the contesting defendant under a sarkhat dated 3 April 1932 and subsequently borrowed a further sum of Rs. 2500 under another sarkhat on 3 July 1932, and with this money the decree against him was satisfied, a portion of the claim being remitted by the decree-holder. Subsequently defendant 2 incurred the need of a further sum of money, and accordingly the contesting defendant advanced him a sum of Rs. 577 and the latter executed a sale deed in favour of the contesting defendant, the consideration therefor being this sum of Rs. 577 and the two sums of Rs. 800 and Rs. 2500 previously advanced, plus interest: total Rs. 4000. Thereafter the contesting defendant obtained mutation in his name, having been put in possession of the property which was sold to him. Finally the contesting defendant denies all relationship between himself and defendant 2, and he states that defendant 2 still has four houses from which the decree of the plaintiffs can be satisfied.