THAKRA SINGH Vs. SHEO NATH SINGH

JUDGEMENT

(1.) This is an appeal by Thakra Singh who was the plaintiff in the suit. Mr. S.N. Katju on his behalf has argued the case with great ability and thoroughness and has said all that could be said in the matter, but we have come to the conclusion that the view taken by the Courts below in this case is correct. The plaintiff brought the present suit for a declaration that the property detailed in the plaint was attachable and saleable in execution of the decree in Suit No. 319 of 1927, Thakra Singh, decree-holder V/s. Attar Singh, judgment-debtor, of the Court of the Munsif of Bijnor. It was stated in the plaint that after obtaining his decree against Attar Singh the plaintiff took out execution of the said decree and wanted to get the property mentioned in the plaint attached and sold by auction, but a fictitious and fraudulent Sale deed was executed on 19 November 1928 by Attar Singh in favour of Sheo Nath Singh and objections were taken to the execution on the ground that the property did not belong to the judgment-debtor of the plaintiff but was owned and possessed by Sheo Nath Singh. These objections were allowed by the Court on 11 January 1932, and therefore the plaintiff had to bring the present suit under the provisions of Order 21, Rule 63, Civil P.C.

(2.) It would thus appear that the plaintiff's case originally was that the sale in favour of Sheo Nath Singh was fictitious and collusive and without consideration. Sheo Nath Singh filed his written statement and therein stated that the sale deed was executed for Rs. 16,000 instead of Rs. 20,000 for the reason that Attar Singh and Sheo Nath Singh had entered into an agreement whereunder Attar Singh had stipulated that he would get the property sold reconveyed if he paid to Sheo Nath Singh the sale consideration together with interest at the rate of Rs. 2 per cent. per mensem within six months, and as Attar Singh had not paid the money to the defendant the defendant was the owner of the property unfettered, by any condition of re-purchase. Sheo Nath Singh was subsequently examined on 9th January 1933 and he stuck to the position which he had taken in the written statement with this addition, that he alleged that he was to get interest as well as profits.

(3.) In this state of the pleadings the plaintiff declined to produce any evidence and so did the defendant, and learned Counsel for the parties proceeded to argue the case. It was contended on behalf of the plaintiff that on the case put forward by the defendant the document of 19 November 1928 was a mortgage by conditional sale. Mr. Daya Nand Joshi who heard the case in the first instance held the view that the document was a mortgage by conditional sale and decreed the plaintiff's suit. It might be mentioned at this stage that the villages mentioned at the foot of the plaint included a village by the name of Bakarpur Jairam, but during the pendency of the suit it became quite clear that Bakarpur Jairam was not sold to Sheo Nath Singh and hence the decree granted by Mr. Joshi was confined to the other villages mentioned in the plaint. There was an appeal by the defendant and Mr. Lakshman Prasad passed a curious order in the case which has given rise to certain arguments. He felt dissatisfied with the attitude taken by learned Counsel for the parties in the trial Court and was of the opinion that the defendant was prejudiced by the attitude taken by his counsel. He thought that an opportunity should be given to the parties to show if time was of the essence of the contract of re-purchase. One would have thought that under these circumstances he would have remitted an issue and asked for a finding from the trial Court on the particular issue, but instead he set aside the decree of the trial Court and remanded the suit to that Court for re-trial on the merits after giving the parties opportunity to produce evidence on the question referred to above. A decree under Order 41, Rule 35, Civil P.C., was prepared.