RAMESHWAR PRASAD Vs. GAYA PRASAD

JUDGEMENT

(1.) This second appeal has been filed by defendants 1 and 2 in a suit in which the plaintiffs prayed for a declaration that certain property was not attach, able and saleable in execution of a money deeree obtained by defendants 1 and 2 against the other defendants. The trial Court dismissed the suit but the lower Appellate Court has decreed it.

(2.) The material facts are these. Defendants 3 to 6 were indebted to a number of persons, the present appellants, and the plaintiff-respondents being among the creditors. The appellants had obtained a decree for the recovery of a certain sum of money from the Court of Small Causes against defendants 3 to 6 in Suit No. 1460 of 1932. The plaintiffs on the other hand entered into negotiations with defendants 3 to 6 for the sale of the latter's property in liquidation of the debts due to the former. According to the finding of fact recorded by the Court below a sale deed was executed by defendants 3 to 6 in favour of the plaintiffs on 5 July 1932, at 12 o clock noon. This sale deed was registered the next day, i.e. on 6th July 1932. In the meantime the appellants had on 4 July 1932 applied for the execution of their decree by attachment and sale of this very property and had managed to obtain an order from the execution Court for attachment on that very day, namely 4 July 1932. The attachment was actually made by the Amin on 5th July 1932. When the plaintiffs learnt of this attachment and of the intention of the appellants to put the property to sale, they filed the suit for the declaration mentioned above. The case of the plaintiffs is that the attachment had been made by the Amin on 5 July 1932 about 5 o clock in the afternoon, i.e. after the execution of the sale deed in favour of the plaintiffs, and that the Amin had, in collusion with the decree-holders, falsely stated in his report that the attachment had been made at 9 o clock in the forenoon.

(3.) The allegation of the appellants in defence was that the attachment had as a matter of fact been made at 9 A.M. on 5 July 1932, and that the attachment having been made at 9 A.M. the sale deed, which was executed in favour of the plaintiffs at 12 noon on that day, was of no effect as against the attachment. The parties went to trial on this simple question of fact, viz. whether the attachment had been made at 9 A. M. or 5 P.M. on 5 July 1932. The Munsif held that the attachment had been made at 9 A.M. and dismissed the suit. The plaintiffs appealed, and the lower Appellate Court remitted to the trial Court certain issues for finding under Order 41, Rule 25, Civil P.C. One of those issues was "Are the plaintiffs purchasers for value in good faith?" The parties were allowed to produce fresh evidence. The trial Court submitted its findings on all the issues remitted by the lower Appellate Court. Its finding on the issue mentioned above was that the plaintiffs were purchasers for value, but that they had notice of the fact that defendants 1 and 2 had taken out execution against defendants 3 to 6 and attachment had been made and that therefore they were not purchasers in good faith. The lower Appellate Court, after taking into consideration the entire evidence on the record, has disagreed with the findings of the Munsif. It has held that the attachment was as a matter of fact made at 5 P.M. on 5 July 1932, and that the Amin's report and deposition were not reliable. It has also held that the plaintiffs had no knowledge of the execution proceedings started by the appellants and of the order for attachment. It has further held that as a matter of fact defendants 1 and 2 - the appellants before us - got information of the fact that defendants 3 to 6 were going to execute a sale deed in favour of the plaintiffs and thereupon they rushed to the Court with an execution application and obtained an order of attachment and got the Amin falsely to state in his report that the attachment had been made at 9 A.M. although it had actually been made at 5 P.M. On these findings of fact the lower Appellate Court has held that the plaintiffs were purchasers for value in good faith and their wale deed having been executed before the attachment took place, they were entitled to the declaration sought.