NAMUNA BIBI Vs. ROSHA MIAH

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an order of the lower Appellate Court affirming that of the Munsif in certain execution proceedings. The sole point for determination is whether at the date of the decree-holder s last application for sale, dated 25th March 1909, the property sought to be sold was under attachment.

(2.) The facts are as follows: In 1906, the decree-holder obtained a money decree against the judgment-debtor and, in execution attached and advertised for sale the taluk now in question. The judgment-debtor raised objections and proceedings took place which delayed matters for two years. It is unnecessary to particularise those proceedings as they have no bearing on the present case. On 4th April 1908, the decree-holder again applied for execution and asked for sale of the taluk (Execution Case, No. 464 of 1908). The judgment-debtor raised an objection that there was no subsisting attachment. This question was fought out in Miscellaneous Case, No. 190 of 1908, and both in the Court of first instance and the Appellate Court, the decision was against the judgment-debtor. The decree-holder then took further steps and a fresh sale proclamation was issued. The judgment-debtor again objected and his objection gave rise to Miscellaneous Case, No. 287 of 1908, which was eventually dismissed. On 2nd January 1909, we find this order in Execution Case, No. 464 of 1908 "Miscellaneous Case, No. 287 of 1908, has been dismissed for default. Issue sale proclamation on the property attached, fixing 15th February for sale. Decree-holder to file talabana and written process at once." On 15th February 1909, we find the order "Put up for sale after the sale (work) of Judges and other Courts are over" and on 17th February 1909, "Decree-holder is permitted to bid at sale up to the decretal amount as prayed for."

(3.) Then on 20th February 1909 comes the order on the effect of which the determination of this appeal depends.