SADEI SAHU Vs. CHANDRAMANI DEI

JUDGEMENT

(1.) This is an appeal from a decision of the Additional Subordinate Judge, Cuttack, reversing the judgment of the Munsif of the 1 Court, Cuttack, in a suit instituted by the respondent under Order 21, Rule 103, Civil P.C, for a declaration that the decree obtained by the appellant in original suit No. 242 of 1930 of the latter Court is not binding upon her and for a permanent injunction against the appellant restraining him from .taking delivery of possession of the disputed property in execution of the said decree.

(2.) The facts of the case are as follows. On 5-12-1927, one Alekh Sahu agreed to sell the disputed property to the appellant. On 20-6-1930, Alekh Sahu entered into a second, agreement under which he contracted to sell the disputed property to the respondent and on 16-7-1930, he executed a deed of sale thereof to the respondent who thereafter entered into possession and her name appears in the Current Settlement Record of Rights. There are concurrent findings of fact of the two Courts below, which were not disputed before us, that the respondent at the date of her purchase had notice of the prior sale to the appellant.

(3.) On the same day, 16-7-1930, but subsequent to the actual, execution of the above-mentioned deed of sale to the respondent, the appellant instituted order Section No. 242 of 1930 against Alekh Sahu claiming specific performance of the contract of sale of 5-12-1927. In his evidence the appellant as D. W. 3, admitted that on 16-7-1930, when he instituted order Section No. 242 of 1930, he was aware of the prior execution on that day of the deed of sale to the respondent. He did not, however, see fit to implead the respondent in that suit.