BANSRAJ PANDEY Vs. RAM LAL PANDEY

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by the appellant for a declaration that the property specified at the foot of the plaint was liable to attachment and sale in execution of decree No. 1385 of 1929 passed in his favour against defendant 2, Balraj Pande, on 30 July 1929. The Court of first instance decreed the suit. The lower Appellate Court agreed with the findings of fact of the Court of first instance, but holding in favour of defendant-respondent 1, Ram Lal Pande, on a question of law, reversed the decree and dismissed the suit.

(2.) The material facts as found by the Courts below are these : The plaintiff- appellant obtained a decree No. 1385 of 1929, from a Court of Honorary Munsifs against defendant 2, Balraj Pande, on 30 July 1929. He applied for its execution on 19 June 1931, and prayed for the attachment and sale of the property specified at the foot of the plaint as belonging to his judgment-debtor. On 20th June 1931, the execution Court pansed an order for the attachment of the property. On 22 June, 1931 the judgment-debtor, Balraj Pande, executed a deed of sale in respect of that property in favour of defendant 1, Ram Lal Pande, at 12 o clock. The attachment of the property was made by the Amin on the same day, i.e. 22 June, 1931 at 5 P. M. Thus the sale deed in favour of respondent 1, Ram Lal Pande, was executed prior to the actual attachment of the property, but subsequent to the order for attachment passed by the execution Court. Ram Lal Pande filed a petition of objections under Order 21, Rule 58, Civil P.C., objecting to the attachment of the property on the ground that he had bona fide purchased it for consideration before the attachment had taken place and that at the time of the attachment the property belonged to him and not to the judgment-debtor. The decree-holder, Bansraj Pande, contested that application, but the execution Court held that Ram Lal Pande had bona fide purchased the property for consideration at a time when the property had not been attached and allowing the petition of objections ordered that the property be released from attachment. This order was passed on 8 August 1931. Thereupon the decree-holder, Bansraj Pande, filed the suit out of which this appeal has arisen on 8 August 1932, seeking the declaration mentioned above. The suit purported to be one under Order 21, Rule 63 of the Code. The defence of defendant 1, Ram Lal Pande, as put forward in his written statement, was that the property purchased by him had not been attached at the time when the sale deed was executed in his favour, that he had no knowledge that the plaintiff had executed his decree, that he had taken the sale in good faith in order to have his own debts discharged by the vendor, defendant 2, and that he had paid full consideration for the same before the Sub-Registrar.

(3.) The trial Court, besides finding the facts as stated above, also held that the sale deed in favour of Ram Lal Pande was for consideration but that the consideration waa inadequate in view of the market value of the property. It further held that Ram Lal Pande had not made the purchase in good faith but had colluded with the judgment-debtor in order to assist him to convert his property into cash so that the decree-holder may not be able to realize the amount due to him. No question as to the suit being barred by the provisions of Section 47, Civil P.C., was raised or decided. Ram Lal Pande appealed to the lower Appellate Court against the decree of the trial Court. In the memorandum of appeal he repeated the pleas taken by him in the written statement and attacked the finding of the trial Court that his purchase had not been made in good faith, but did not take any ground to the effect that the suit was barred by Section 47, Civil P.C. The lower Appellate Court framed two questions for determination: (I) Was the appellant a purchaser in good faith? and (2) did he purchase the property during the continuance of an attachment made on the application of respondent 1? If so, how does this affect the suit?