POKHPAL SINGH Vs. KANHAIYA LAL

JUDGEMENT

(1.) This is a defendants first appeal. The present suit is suit by an auction, purchaser, to whom possession of the property purchased by him has been refused by the execution Court, to recover possession of that property from certain transferees of the judgment-debtors who were not parties to the proceedings in execution of a decree. One Bhup Singh son of Gulab Singh was the owner of one biswa share in village Khushkari as his separate property. Bhup Singh had two brothers, Pokhpal Singh, defendant 1, and Nek Ram Singh, defendant 2, of the present suit. Defendant 3, Faujdar Singh, is the son of defendant 1 and defendant 4, Nawab Singh, is the son of defendant 2. On the death of Bhup Singh, he was succeeded by his widow Mt. Jawatri. On the death of Mt. Jawatri in the year 1927 Pokhpal Singh and Nek Ram Singh as the nearest reversioners were entitled to be entered in the khewat as owners of the one biswa share, half and half. For some reason which does not appear on the record Pokhpal Singh and Nek Ram Singh and their two sons were recorded as the owners each of a one-fourth Bhare in this one biswa share. Not long after they had obtained possession of this property, Pokhpal Singh and Nek Ram Singh on 6 December 1928, executed a bond for Rs. 400 in favour of one Janki Prasad and this bond was later on assigned by Janki Prasad to the present plaintiff Kanhaiya Lal. Kanhaiya Lal in due course on 2 June, 1931 instituted a money suit No. 240 of 1931 to recover the amount due to him on the bond at that time, impleading as defendants Pokhpal, Faujdar Singh and Nek Ram Singh. On 1 August 1931 he was given a decree for Rs. 372-1-0 with costs and interest pendente lite and future at 6 per cent, per annum, that is, a decree for Rs. 437-3-0. In October 1931 this decree was transferred for purposes of execution to the Court of the Munsif of Kasganj who on 12 December 1931 at the instance of the decree- holder made an order under Rule 54 of Order 21, Civil P.C., for attachment of this one biswa share. It is in evidence that this attachment was actually effected by proclamation and affixation of a copy of the order on 2 February, 1932. Prior to that date, however, Nek Ram Singh had on n January, 1932 executed a sale- deed, Ex. A-12, in respect of a 5 biswansi (that is one-fourth of one biswa) share in favour of defendant 6, Chhiddu, for Rs. 4500. Under the provisions of this sale- deed Rs. 500 was left in deposit with the vendee on account of the entire amount due under the decree of the Court of the Munsif of Etah, Kanhaiya Lal V/s. Pokhpal Singh and Ors. in Suit No. 240 of 1931, which was described as being under execution and in connexion with which it was said that the property sold along with other property stood attached. At a much later date, on 10 August 1932, Pokhpal Singh similarly transferred his 5 biswansi share to Bhopal and Hulasi (father of Chhiddu) for Rs. 5000. The consideration consisted entirely of the amounts due to the vendees in respect of prior transactions.

(2.) On 28 July 1933 the one biswa share, which in the light of the recitals in these sale-deeds must have been shown as considerably encumbered, was put to sale by the Collector (Sales Officer) to whom the execution had been transferred in May 1932 and the sale concluded in favour of one Banarsi Das for a sum of Rs. 175 out of which Rs. 169-7-0 was paid to the decree-holder Kanhaiya Lal towards the decretal debt. Certain objections are said to have been filed by the judgment- debtors under the provisions of Rule 90 of Order 21 but these objections were unsuccessful and the sale was confirmed on 5 January 1934. The matter was taken in appeal to the Commissioner who dismissed the appeal on 2lst October 1935, and subsequent applications in revision and. review to the Board of Revenue were dismissed on 3 October 1936 and 23 May 1987. While these proceedings were going on, the decree-holder in March 1934 made a fresh application for execution of his decree which was registered as No. 322 of 1984. During the pendency of this execution the judgment-debtors on 2 January, 1936 made an application for amendment of the decree under Secs.5 and 30, U.P. Agriculturists Relief Act, to the execution Court. The application was opposed by the decree-holder but on 13 March 1936 the Court passed orders amending the original decree so as to reduce the principal amount from Rs. 372-1-0 to Rs. 350- 5-0 and allowing payment by 10 equal instalments.

(3.) Thereafter on 4 May 1937 as the result of certain proceedings in his Court, the same sale proceedings which had begun in 1982, the Sales Officer accepted a statement made by Banarsi Das that he had been, bidding at the auction sale only on behalf of Kanhaiya Lal and directed that a sale certificate should be issued in the name of Kanhaiya Lal and on 11 May 1937 the sale certificate was so issued. Within a few days Kanhaiya Lal relying on his sale certificate made an application in the execution Court, that is the Court of the Munsif of Kasganj, to be put in possession of the property in respect of which he had obtained a certificate that he was the auction-purchaser. This application was, however, dismissed by the learned Munsif a year later on the ground that by reason of the amendment of the decree the execution proceedings and the sale which took place in the course of those proceedings had become null and void. Applications in revision were made to this Court against the order amending the decree and also against the order refusing to put the auction-purchaser in possession of the property. These two applications came before Mulla J. on 24 March 1939 and at the hearing it was conceded that the revision application against the order refusing possession could not succeed as long as the order amending the decree and converting it into an instalment decree stood intact. The application for revision against the amending order had not been made until more than two years subsequent to the amending order of 13 March 1936. The application against the amending order was dismissed, it being held by Mulla J. that it was open to the Court to reopen the whole decree even though a part of it had been satisfied and to re-adjust the account between the parties in accord, ance with Section 3, U.P. Agriculturists Relief Act. It was also remarked that the application must necessarily fail also on the ground that it was hopelessly belated.