ABDUL RAHMAN Vs. HAJI ABDUL RASHID

JUDGEMENT

(1.) Heard Sri Pradeep Kumar Rai, the learned counsel for the appellants and Sri V.M. Zaidi, the learned Senior Counsel assisted by Sri S.M.G. Asgar, the learned counsel for the respondents. The facts leading to the filing of the present second appeal is, that Suit No. 386 of 1966 was filed by Haji Abdul Rashid for recovery of Rs. 700/- against Tulsi. This suit was decreed by a judgment dated 25.10.1966. The decree was put in execution, being Execution Case No. 81 of 1967 and, in this execution proceeding Plot No. 3 of the judgment-debtor was attached and put to auction. In the auction, the decree-holder participated. The attachment was made on 9th November, 1967 and was auctioned on 9th July, 1968. The decree-holder took possession of the plot on 12th December, 1968, on which date, the present plaintiff came to know about the decree against Tulsi and the subsequent attachment and auction of the plot. The plaintiff, being aggrieved, filed a suit for mandatory and prohibitory injunction for setting aside the auction sale, for possession and for mesne profits.

(2.) The plaintiffs' case was that he was a bona fide purchaser having no knowledge about the earlier suit and that he had purchased the property vide a registered sale-deed dated 30.10.1967 whereas the attachment by the Court, on the property in question, was done on 9.11.1967. The plaintiff contended that he had no knowledge of the suit or of the attachment proceedings since, there was no order of attachment passed by a Court of law prior to the date of purchase of the land by the plaintiff, and consequently, being a bona fide purchaser, the auction sale was liable to be set aside and possession was liable to be restored to the plaintiff.

(3.) The suit was contested by the decree-holder contending that the sale-deed was fraudulently executed with intent to defeat or delay the creditors of Tulsi and that the plaintiff had executed the sale-deed in collusion with Tulsi and that the sale-deed was hit by the provision of Section 53(1) of the Transfer of Property Act. The trial Court on the basis of the pleadings framed various issues namely:--