MATHURA DAS Vs. SAMRAJ SINGH

JUDGEMENT

(1.) THIS suit was filed for a declaration that a sale-deed executed by the plaintiff's judgment-debtor in favour of the respondent Ramraj Singh on 23 April, 1919, is null and void as against the plaintiff and that the property is liable to sale in execution of the plaintiff's decree against the other defendants. The suit has not been tried on the merits, both-Courts having dismissed it as barred by Section 47 of the Civil Procedure Code. The ground taken by the trial Court and approved by the Court below is that, according to the allegations in the plaint Ramraj Singh's purchase was made after the issue of an injunction and of an attachment in execution of the plaintiff's decree. Under these circumstances the Courts have held that Ramraj Singh is a representative of the judgments-debtor under the ruling in Lalji Mal V/s. Nand Kishore (1897) 19 All. 332 and therefore the plaintiff's remedy was under Section 47. It appears to us that the Courts have not paid sufficient attention to what actually took place Ramraj Singh's allegation on which his objection was founded was that he made his purchase prior to the attachment and was holding under an independent title. THIS contention was upheld by the executing Court. His objection was treated throughout as an objection under Order 21, Rule 58, and the order passed was passed under that rule.

(2.) THE order specially directs the decree-holder to file a separate suit to establish his title. It appears to us that, if the decree-holder had attempted to appeal against this order, his appeal would have-bean rejected on the ground not only that the order purported to have been passed under Order 21, Rule 58, but that the Court below had held that the purchaser was a third party to the suit and not a person who had purchased pending the attachment. Under these circumstances it amounts to a denial of justice to refuse to entertain the plaintiff's suit on the ground that the remedy lay under Section 47. We set aside the decrees of the Courts below and remand the case through the lower Appellate Court to the Court of first instance for trial on the merits. THE appellant will get his costs of the appeal to this Court including in this Court fees on the higher scale. Other costs will abide the result.