KHIROD CHANDRA GHOSH Vs. PANCHU GOPAL SADHUKHAN

JUDGEMENT

(1.) This is an appeal from an appellate decree passed by the District Judge of the Santal Parganas reversing the judgment and decree of the Subordinate Judge of Deoghar in a suit brought by respondent 1 for a declaration of his title to a house in Deoghar which has been attached by the appellant in execution of his decree. The facts of the case are briefly as follows.

(2.) Upendra Nath Dutt and Nirtyagopal Khan had obtained a decree against the pro forma defendants second party which they assigned to respondent 1. Respondent 1 applied for the execution of this decree which being transferred to the Subordinate Judge at Alipur, three properties including the house in suit were advertised for sale in three lots. Thereupon the appellant who also had a decree against the pro forma defendant applied for rateable distribution and also objected to the jurisdiction of the Subordinate Judge at Alipur to sell the properties. At that time the appellant was interested only in one of the three properties, namely Howrah Dragon Iran Works and ultimately a compromise being arrived at between him and respondent 1 his objection to the sale was dismissed and he got a sum of Rs. 445 out of the sale proceeds of the Howrah Dragon Iron Works in the Alipur Court.

(3.) Some time later, the appellant executed his decree against the defendants second party at Deoghar and attached two-fifths share in the disputed house which had in the meantime been purchased by respondent 1 at a sale held at Alipur. Respondent 1 thereupon preferred a claim under Order 21, Rule 58, but his claim being summarily rejected, he brought the present suit under Order 21, Rule 63 to obtain a declaration that by virtue of the sale held at Alipur he had obtained an absolute title to the disputed property and that as it no longer belonged to the defendants second party, it could not be attached in the execution of the decree against them. The appellant resisted the suit on several grounds, one of which was that the Alipur Court had no jurisdiction to sell the house in question. The trial Court upheld the objection and dismissed the suit and also held that the plaintiff was not the real purchaser of the decree obtained by Upendranath Dutt and Nirtyagopal Khan against the defendants second party but was merely a benamidar on behalf of the latter.