SADHU PRASAD SAH Vs. SATNARAIN SAH

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit under Order 21, Rule 63. The plaintiff had a decree against Mr. H.L. Russel, defendant 2, in execution of which he sought to sell sixteen annas proprietary interest in village Hasanpur, Mahal Hasanpur, tauzi No. 2130 as being the property of his judgment-debtor. A claim was presented by defendant 1, Sitaram Sahu, alleging that he had bought the property from defendant 2 on 6 September 1926 by a deed of sale. The plaintiff's case was that the said deed of sale was a farzi transaction and no title passed under it, the beneficiary ownership of the property still remaining with Mr. Russel. The plaintiff further contended that the property had been attached before judgment on an application by the plaintiff in the suit in which he obtained the decree which he is now seeking to execute. The claim was allowed by the Subordinate Judge and the present suit has been instituted because the plaintiff is not satisfied with that position. The substantial issues were whether, there was any attachment before judgment of this property in the plaintiff's mortgage suit of 1924 and whether the sale deed executed by Mr. Russel in favour of defendant 1 is fraudulent and colourable and without consideration. Both these issues were decided against the plaintiff by the Subordinate Judge. Hence this appeal in which the same points are raised.

(2.) Mr. De for the appellant has pointed out that in his application for attachment before judgment (Ex. 2) a list of properties to be attached is annexed and No. 25 of the properties in that list is Mauza Hasanpur. The order sheet shows that the Court in general terms directed attachment of the properties specified in the application. The plaintiff was further ordered to file the talbana and notices, etc. duly filled in. In pursuance of this order writs of attachment were issued and they with the reports of service are Exs. 1 and 3. Ex. 3 is the service of a writ issued through the Civil Court nazarat and served by a Civil Court peon. The list of properties annexed to this service return has not been printed but at the hearing we were referred to it and have found that property No. 25 of the list annexed to the petition for attachment finds no place in the list of properties annexed to the writ. This may have been as Mr. De contends an oversight; but the writ can only operate to effect attachment over properties mentioned in it. The return of service shows that it was served in villages Sonbarsa, Sandali, Fatehpur, Rampur and Sadhaua; but there is no reference to Hasanpur at all. It is clear that so far as this writ is concerned, attachment of Hasanpur was not effected and there is nothing here either to prohibit or to invalidate any subsequent dealing with the property by the defendant, Mr. Russel. The other writ is Ex. 1 which was sent to the Subdivisional Officer, Gopalganj, for service.

(3.) The properties specified in this writ are the entire sixteen annas of proprietary interest in Mauza Sadhaua, Mahal Hasanpur, Kothia Rampur, pargana Dangsi, district Saran, tauzi No. 2130, sadarjama of the entire mahal being Rs. 251-4-3. It was forwarded for service and return. The report of service by the peon, Ramnagina Rai, is that he went to the mahal and after getting proclamation by beat of drum he caused a copy of the writ to be hung up in a tree and got a report written by the chaukidar. The chaukidar's report is that a writ in respect of mahal Hasanpur having been brought by Ramnagina Rai he made a proclamation by beat of drum and hung up a copy of the writ in respect of the said mahal on a banyan tree. From the reports it might appear that the peon and chaukidar read the order as being an order of attachment of the entire mahal. But this it certainly was not. The mahal consists of four villages, Sadhaua, Hasanpur, Rampur and Kutlupur, and of these Kutlupur had previously passed out of the ownership of. Mr. Russel. There remained only three villages which could possibly be attached. In the description of the property Sadhaua one of these villages is mentioned by name and after its name the words "Mahal Hasanpur" following are to be taken as descriptive and not as meaning another mauza nor yet as meaning the entire mahal including property never intended to be attached. The Subordinate Judge is right in saying that Mauza Hasanpur is not mentioned in either of the writs and so it follows that attachment of this mauza was not effected at all. We cannot look behind the writs to see what it was the intention-of the plaintiff to attach, but we must see-from the writs themselves what was the property that was attached. On this issue therefore the plaintiff fails. There was nothing in the writs by which attachment of other properties was effected to prohibit Mr. Russel from transferring this property Hasanpur or to invalidate any such transfer.