MT BHAGERNA KUER Vs. RAMDENI RAI

JUDGEMENT

(1.) This is an appeal by the plaintiff who is aggrieved by the decision of the learned Additional Subordinate Judge of Chapra dated 28 February 1946, by which he reversed the decision of the learned Munsif in the circumstances about to be narrated. The question for decision is whether the maintenance decree of the plaintiff cannot be executed against the properties in suit on the ground of res judicata and on the ground that the defendants have obtained dear title to it by reason of the sale in execution of an order passed in favour of the Government to realise the court fee.

(2.) On 80 June 1936, the plaintiff obtained a maintenance decree against defendants 2 to 6 who were members of a joint family and by that decree a charge was created on the properties in dispute in the present suit. The suit having been instituted in forma pauperis, defendants 2 to 6 were directed to pay the court-fee payable on the plaint. The court-fee not having been paid, the Government proceeded to realise the amount of the court-fee by selling the property which had been declared subject to the charge of the plaintiff. In 1987, defendant 1 became the auction purchaser of the property in the present suit. In the same year, the plaintiff; executed her decree for maintenance for the amount which had fallen in arrears, and proceeded to attach the property in dispute. Defendent 1 preferred an objection objecting to the attachment, and the objection was allowed under Order 21, Rule 58, Civil P.C. The plaintiff thereupon in the year 1988 filed a suit under Order 21, Rule 68, Civil P.C. to set aside that order, but the suit was dismissed for default.

(3.) In the year 1941, the plaintiff again executed the decree for the arrears which had become due subsequently. Defendant 1 again filed an objection under Order 21, Rule 68, Civil P.C. to the attachment, but that objection was disallowed on the ground that it was not maintainable as Order 21, Rule 58, Civil Procedure has no application to such cases. That objection was disallowed on 23 December 1941. The plaintiff having executed the decree became the auction purchaser of the lands in suit in January 1942, and got delivery of possession, but the possession was resisted by defendant 1. Thereupon, the proceedings were started under Order 21, Rule 100, Civil P.C., and the Court passed an order under B. 101. As such an order is conclusive subject to the result of a regular suit, as provided by Rule 103, the plainlife was forced to bring this suit giving rise to this appeal to establish her right to possession of the property.