MUKHRAM PANDEY Vs. ARJUN MISSIR

JUDGEMENT

(1.) This is an appeal by the defendants-first-party, against a decree of a Subordinate Judge of Shahabad, declaring the plaintiff's title to the properties involved in the suit and giving him possession of the same. The facts are these: The property in suit belonged to the defendants-second party. There were two decrees against them: one in favour of one Ramchandra and another in that of the defendants-first party. The two decrees were executed almost at about the same time in two different Courts. Attachment of the properties in suit was effected in Ramchandra's decree on 11 May 1922, and that in the decree of defendants-first party on 18 May 1922. It so happened however that the properties were sold first in execution of the decree of defendants-first party on 13 September 1922 and purchased by them. Thereafter, one of them, defendant 1, filed an application purporting to be under Order 21, Rule 58 before the Court where the other decree was under execution. The Court held that as the interest of the claimant accrued after the attachment which was effected on 11 May 1922, he is not a person who could come under Order 21, Rule 58, and therefore dismissed the application. In my opinion, the Court was perfectly correct in the view which it took.

(2.) Order 21, Rule 58, read with Rule 59 gives right of claim only to those who had interest in and possession of the property under attachment on the day when the attachment was effected. Rule 58 is no doubt, general, but Rule 59 makes it clear that the investigation is to be confined to possession on the date of the attachment.

(3.) But it is unfortunate that the Court though informed that the properties had already been sold in execution of a decree of another man by another Court on 13 September 1922, proceeded to sell them again and did sell them on 18th November 1922, when they were purchased by the plaintiff. This has led to a conflict between the two sales: one having been held on 13 September 1922, by virtue of an attachment of 18 May 1922, in execution of the decree of the defendants first party and another held on 18 November 1922, by virtue of an attachment effected on 11 May 1922, in execution of the decree of Ramchandra. It seems that the defendants-first party obtained possession of the properties, and the present suit was instituted by the plaintiff the purchaser, at the sale held on 18 November 1922, for recovering them. There was also a claim for redemption of some of the properties, which had been mortgaged to some of the defendants by the original holder of the properties, defendants-second party.