BENARES BANK LTD Vs. SASHIBHUSHAN MISRA

JUDGEMENT

(1.) This is an appeal by the decree-holder, the Benares Bank, Ltd., (in liquidation)--who is aggrieved by the order of the learned Subordinate Judge of first Court,, Monghyr, dated 14-111945 by which he has held that the judgment- debtor has no saleable interest in the property which was purchased by the respondent and, therefore, has set aside the sale.

(2.) The appellant having obtained a decree against the judgment-debtor in the Court of the Subordinate Judge at Bhagalpore got it transferred to Monghyr for execution and put up to sale the interest of the judgment-debtor in eight annas share in costs 1 and 2. The sale was actually held on 4-4-1944, and the respondent Sashi Bhushan Misra became the auction-purchaser for Rs. 5100. The sale was confirmed on 6-5-1944.

(3.) On 3 11-1944 Sashi Bhushan Misra filed an application under Order 21, Rule 91, Civil P.C, that; the sale should be set aside upon the ground that the judgment-debtor had no saleable interest on the date of the sale. The reason for making the application beyond 30 days of the date of the sale was alleged to be that the petitioner was a resident of Darbhanga district and when he sent the rent to the landlord he was informed on 15-10-1944 that the name of the judgment- debtor was not recorded in the landlord's serishta, but the name of one Ambica Singh was recently mutated in place of the "judgment-debtor by virtue of a kabala executed in June 1941 regarding lot No. 2 and that lot No, 1 had long ago been purchased by the Banailly Raj in execution of a rent decree and the same had been settled with Ambica Singh who had sold it to one Munshi Sahu. It will be observed that all these alleged transactions took place long before the date of the sale.