PROSUNNO COOMAR SANYAL Vs. KASI DAS SANYAL

JUDGEMENT

(1.) THE suit in this case was brought for the purpose of setting aside the sale of a zemindari in the district of Pubna, called Futtehpore, which was sold in execution of a civil decree on the 10th of July, 1883. The Subordinate Judge dismissed the suit on preliminary grounds, without going into the merits. The High Court at Calcutta affirmed his decree.

(2.) IT appears that some time before 1880, the Respondent Protap Chunder Banerji recovered against the Appellants, and certain persons who were co-sharers with them in Futtehpore, a decree for possession of some lands in dispute, and also a money decree for mesne profits and costs. In execution of that decree Futtehpore was attached. Thereupon, as the Appellants allege, they and two other persons who were co-Plaintiffs in the suit before the Subordinate Judge, paid their quota of the judgment debt and came to an arrangement with the judgment creditor that their shares should be exempted from sale. The shares of the other co-sharers were alone put up for sale, and they were sold on the 10th of February, 1882. Afterwards this sale was set aside, the attachment was revived, a fresh sale took place, and on the 10th of July, 1883, the whole of Futtehpore was sold. The allegation in the plaint is that the setting aside of the first sale, the revival of the attachment, and the second sale in which the shares of the Plaintiffs were sold with the rest, were brought about by fraud and collusion on the part of the other co-sharers, the judgment creditor, and the auction purchasers, who were all made Defendants. No particulars of the alleged fraud and collusion are given. The charge is general and perfectly vague. If it means anything, it can only mean that the judgment creditor broke his alleged agreement with the Plaintiffs, and that the other persons alleged to have been implicated, being aware of the circumstances, took some part in the transaction.

(3.) MR Doyne, who appeared for the Appellants, admitted that the question at issue was one "relating to the execution, discharge, or satisfaction of the decree." But he argued with much ingenuity that the suit was not barred by the provisions of Section 244, because the question concerned the auction purchasers as much as anybody, and therefore, as he contended, it could not properly he described as a question "arising between the parties to the suit in which the decree was passed." At the same time, he admitted that ho was unable to produce any authority for his contention, and the also admitted that it was the common practice to make the auction purchaser a party to an application for setting aside an execution sale.