DEO NARAIN SINGH Vs. BIBI KHATOON

JUDGEMENT

(1.) Miscellaneous Appeal No. 283 of 1946 is on behalf of decree-holder against the appellate order of the Subordinate Judge in an execution case. Miscellaneous Appeal No. 287 and civil Revision No. 819 of 1946 are on behalf of two judgment- debtors Parasnath and Deo Narain in the same case.

(2.) The material facts are not in dispute. In Money Suit No. 194 of 1937 the plaintiff claimed that Deo Narain Singh as karta of the joint family had borrowed money on a handnote. He obtained a decree against Deo Narain Singh, his five sons and three grandsons. In Execution case No. 21 of 1938 the decree-holder first applied for executing the decree. In 1940 a second execution case was filed and certain properties were sold But the sale was set aside under Order 21, Rule 90 and the execution case was dismissed for default on 16 July 1941. On the same date the decree-holder for the third time applied for execution against Deo Narain and his three sons Ramsaian, Anup and Bhagwat. The two sons Parasnath and Rajendra and grandsons were not made parties. In the execution petition only three properties, namely, lot Nos. 1, 2 and 3 were mentioned. But on 12 November 1911 the decree-holder filed an amendment petition asking that lot No. 4 should be added to the list. Before the amendment, notice under Order 21, Rule 22 had been served on the four judgment-debtors. After the amendment notice under Section 13, Money-lenders Act, was served. Two judgment-debtors, Deo Narain and Anup, filed objection and offered keen contest on the question of valuation. On 27 November 1942, lot No. 4 was sold and purchased by decree, holder for a sum of Rs. 1,979-8-0.

(3.) Deo Narain Singh filed a petition under Order 21, Rule 90 for setting aside the sale. Parasnath, one of his sons, filed a petition under Section 47 to the same effect.