HABIB ULLAH Vs. MAHMOOD

JUDGEMENT

(1.) This is a first appeal brought at the instance of the plaintiff s. The facts briefly are these : One Earn Chandra obtained a decree on the original side of the Calcutta High Court, being dacree No. 705 of 1926, on 10 November 1926. The decree was for money, and against on 3 Nanhen Mistri of Cawnpore. Before the decree could be transferred to Cawnpore for execution and indeed one day before the decree was passed, Nanhen sold on 9 November 1926, a house of his, which is now in dispute, to one Wali Muhammad, for a sum of Rs. 5,000. Earn Chandra having got his decree transferred to Cawnpore sought the attachment of the house of Nanhen, and attachment was made on 9 December 1926. Wali Muhammad objected to the attachment on the ground that the property belonged to him and did no longer belong to Nanhen Mistri, and therefore oould not be attached in execution of a decree against Nanhen. This objection was dismissed on 22nd January 1927, it being held that the property still belonged to Nanhen, and Wali Muhammad had no "title to the property, being only a fictitious transferee.

(2.) Wali Muhammad instituted a suit to have this order set aside on 25 January 1927. In the meanwhile the execution case was struck off for default by the Gawnpore Court on 20 April 1927. Wali Muhammad thereafter did not prosecute his suit, and it was dismissed for default on 6 May 1927 (p. 42 of the record).

(3.) Wali Muhammad sold the house he had purchased from Nanhen to the plaintiffs on 22 December, 1927. Earn Chandra, the decree-holder, also sold his decree, to one Mahmud. Mahmud applied for execution of the decree and attached the property on 30 October 1928. Thereupon the plaintiffs, who had made the purchase from Wali Muhammad, filed an objection to the attachment, and by a lengthy judgment the learned Subordinate Judge dismissed it on 11 December 1928 (p. 54). The appellants applied in revision to this Court, but a learned Single Judge of this Court dismissed the application in revision on 22 February, 1929 (p. 57). Then the plaintiffs filed the suit out of which this appeal has arisen on 6th March 1929.