RAMRUP RAI Vs. FIRM MAHADEO LAL NATHMAL

JUDGEMENT

(1.) This is an appeal by defendant 1 from a decree of the learned Subordinate Judge of Bhagalpur decreeing the plaintiffs claim that certain property was liable to attachment and sale in execution of a decree held by the plaintiffs against defendants second party. The plaintiffs obtained a decree against the defendants second party on the original side of the Calcutta High Court, and the decree was transferred to the Court at Bhagalpur for execution. The plaintiffs then filed Execution Case No. 173 of 1933 in the Court at Bhagalpur against the defendants second party for realisation of Rs. 24,004 odd and attached the properties now in suit. After the attachment defendant first party filed a claim case No. 63 of 1934 alleging that the said property had been purchased by him, and on 14 July 1934, this claim of defendant first party was allowed.

(2.) There appears to have been no contest and the present plaintiff agreed that the claim should be allowed apparently without any investigation. The plaintiffs then instituted the present suit under the provisions of Order 21 Rule 63, Civil P.C., claiming a declaration that the purchase by defendant first party was a f arzi, fraudulent and colourable transaction and that the property really belonged throughout to defendants second party and as such was liable to attachment and sale in execution of the decree held by the plaintiffs against defendants second party.

(3.) The learned Subordinate Judge came to the conclusion that the properties in suit really belonged to defendants second party and decreed the plaintiffs claim with costs. The facts of the case can be shortly stated as follows: The defendants second party were persons of substance owning considerable properties. They defaulted in payment of road cess, and on 7 March 1932, an eight annas share in touzi No. 3074 in mauza Gobindpur Kosli was put up for sale and purchased by defendant first party. On 7 May 1932, this sale was confirmed, and on 13th February 1933, defendant 1 obtained delivery of possession. On 24 February 1932, a twelve-annas share of tauzi No. 3495 of mauza Gobindpur Kosli was also put up for sale for default by the defendants second party in payment of the road cess, and this share was also purchased by defendant 1. On 25 April 1932, the sale was confirmed, and on 13 February 1933, defendant 1 obtained delivery of possession of the same.