RAM BEHARI SAHAI Vs. BINDA PRASAD

JUDGEMENT

(1.) This is an appeal by Ram Behari Sahai and others who objected to the execution of a decree which was passed against one Kamla Prasad who died on 2 September, 1938, the execution having been started on 27 August of the same year.

(2.) The appellants are the transferees of the properties by a sale deed and sudbharna deed executed in their favour by one Moti Bibi who was also a transferee from the judgment-debtor Kamla Prasad by a deed of gift executed on 21 July 1938. The attachment, which was objected to by the appellants, was effected after their objection was filed on 12 December 1938, the attachment having been actually effected on 8 February 1939. On the above statement of facts it is clear that the appellants are not the representatives of the judgment- debtor Kamla Prasad and, therefore, their objection falls to be determined under the provisions of Order 21, Rule 58, Civil P.C., and not under Section 47 of the Code. It follows, therefore, that the appeal is not maintainable and the appellants can succeed only if they can induce us to revise the order passed by the learned Subordinate Judge, dated 26 May 1939, by which he held that although the appellants were in possession of the properties they were in possession without any title.

(3.) The learned advocate for the appellants then requested us to treat the appeal as an application in revision and took us through the entire judgment in order to satisfy us that he ought to be granted relief in revision. The facts found, however, are clear, namely that the deed of gift, which was executed in favour of Moti Bibi on 2l July, 1938, was a colourable transaction, and that the judgment, debtor after this deed of gift continued to be in possession of the property so long as he was alive and that this transaction was entered into in order to put obstacles in the way of the decree-holders or to defraud them.