BABA RAMCHANDRA KOMTI Vs. KONDOO JAGNA WADHAI

JUDGEMENT

(1.) THE appeal is by the defendant Baba against a reversing judgment of the lower Appellate Court. Plaintiff's suit was for possession of six mango trees and Rs. 10 damages for fruit removed by the defendant. Plaintiff relied on a registered sale deed, dated 20th April 1929 executed by the owner Sheikh Abbas, while defendant obtained title by an auction sale in execution of a money decree against this Sheikh, Abbas on 11th April 1934. The defences were that plaintiff's sale deed was bogus and fraudulent, that defendant was a bona fide purchaser for value and entitled to the protection of Section 41, T.P. Act, and thirdly that the suit was time-barred because it was not brought within a year of the dismissal of the plaintiff's objection in the executing Court which was filed on 21st April 1934. The lower Appellate Court held that the plaintiff's sale deed was a genuine one, that defendant could not take advantage of Section 41, T.P. Act, and that plaintiff's suit was within time.

(2.) THIS appeal is pressed on the second and third grounds only. Before the objection was filed, the property had been actually sold by auction on 11th April 1934. So the question arises whether the objection was one under Order 21, Rule 63, Civil P.C., or not. On the one side it is contended that when the auction sale was held, attachment of the property ceased and so the Court had no jurisdiction to entertain an objection to attachment : on the other it is argued that attachment enures until sale is confirmed so that the Court had jurisdiction to deal with this objection, and a suit had to be brought within a year of its rejection. Authorities are divided on this question. Favouring the plaintiff-respondent's view are these cases: Kali Charan v. Sarajini Debi AIR 1926 Cal 468, Sasthi Charan v. Gopal Chandra AIR 1937 Cal 390, Puhupdei v. Ramcharitar AIR 1924 Pat 76, Kishan Singh v. Vaishno Das AIR 1937 Pesh 90, Gopal Chandra Mukerji v. Notobar Kundu (1912) 15 IC 53 and Maung Po Pe v. Maung Kwa (1928) 15 AIR Rang 80. A contrary view is held by the Madras, Sind and Nagpur Courts: Jagannadham v. Pydayya (1931) 18 AIR Mad 782, Mukhi v. Allahbux AIR 1933 Sind 198, Bhagohand v. Mt. Jhunia (1905) 1 NLR 167 and Ramchandra v. Kayam Hussain AIR 1938 Nag 475. I prefer the latter view which is that taken by the Judicial Commissioner's Court and the present High Court, and I endorse the arguments of Niyogi J. in the case last-mentioned above. It appears to me that attachment must be deemed to con-tinue until sale is confirmed and therefore plaintiff's suit must fail because it was not brought within a year of the dismissal of the objection. I am not so inclined to accede to the appellant's argument about Section 41, T.P. Act. He says that the entry of the ownership of Sheikh Abbas in the village papers was conclusive, and that defendant was not obliged to look beyond that. He refers to Section 80, Land Revenue Act. But that deals with settlement decisions only and does not apply to year to year khasra entries made by the patwari. It has been held in a number of cases, Vaman Pandu v. Tikaram (1927) 14 AIR Bom 368 and other cases quoted by Mulla at page 180 of his Transfer of Property Act, Edn. 2, that Section 41 applies only to voluntary transfers and has no application to Court sales. No good authority to the contrary is quoted by the appellant.