MT ANRAJO KUER Vs. RAMDAYAL SINGH

JUDGEMENT

(1.) This second appeal is by defendant 1, and arises out of a suit under Order 21, Rule 63, Civil P.C. The appellant on 14 January 1934, obtained a money decree upon a handnote against defendant 2 in the present suit. On 17 March 1936, she started execution proceedings, praying for attachment and sale of certain property of her judgment-debtor. On 27 March 1936, notice under Order 21, Rule 22, Civil P.C., was served on the judgment-debtor. Shortly afterwards, on 8 April 1936, the judgment-debtor executed and registered a usufructuary mortgage deed in favour of the plaintiff-respondent in respect of the same property which was the subject of the execution proceedings.

(2.) Between 8 May 1936, and 3 June 1936, the properties were attached. On the latter date, the plaintiff-respondent filed a claim case under Order 21, Rule 58, Civil P.C., relying upon the usufructuary mortgage to which I have just referred. Execution however proceeded, and on 23 September 1936, the property was sold and purchased by the decree-holder herself. On 28 September 1936, the claim case was rejected, the Court holding that the claimant had not been in possession under the alleged mortgage, which was not genuine. On 4 December 1936, the sale was confirmed, and on 2 February, 1937, delivery of possession was made to the auction purchaser under Order 21, Rule 95, Civil P.C. Thereafter, on 25 September 1937, the present suit was filed, the plaintiff praying for a declaration that the sale in the execution proceedings was not binding upon him. No prayer was made for recovery of possession the plaintiff contending that the delivery of possession had been ineffective as against him.

(3.) The trial Court held that the mortgage transaction was a sham one, and dismissed the suit. In first appeal, however, the learned Subordinate Judge held that the mortgage was genuine, and the plaintiff had obtained possession thereunder. In that view he gave the plaintiff a declaration that the execution sale did not affect his rights under the mortgage.