Decided on August 05,1953

Arnapurna Patnaik Appellant
Kanduri Dei And Ors. Respondents


Narasimham, J. - (1.) THIS is Plaintiff's second appeal against the concurrent decisions of the two lower Courts dismissing her suit under Order 21 Rule 63 Code of Civil Procedure for recovery of possession of 6.33 acres of land in village Paiko Jamuna described in lot No. 1 of the plaint schedule.
(2.) THE Plaintiff's husband Baishnab Charan Patnaik was a fairly well -to -do person of his village. But it appears that he began to squander away his property by his extravagant way of living and incurring debts. Defendant No. 1 who was one of his creditors obtained a money decree against him in O.S. No. 591/30 in the Court of the District Munsif of Aska and in execution of the same in E.P. No. 141/42 he got the disputed property attached on 1 -3 -43. The Plaintiff filed a claim case under Order 21, Rule 58 Code of Civil Procedure claiming the disputed property as her own alleging that her husband's interest in the property had been sold away as early as 28 -9 -32 in a rent sale and purchased by one Binaik Panda who conveyed it to her by a sale -deed (Ext. 1) dated 13 -10 -39. She therefore alleged that her husband (judgment -debtor) had absolutely no interest in the property. The learned Munsif by his order dated 16 -4 -43 (Ext. 7) dismissed the petition without any investigation saying that it was filed after much delay. The property under attachment was, in due course, sold by the Court in execution of the decree. Thereupon the Plaintiff instituted the suit under appeal under Order 21, Rule 63 Code of Civil Procedure for declaration of her title in respect of the property that was attached and sold. Another item of property, 1.9 cents in extent, bearing survey No. 758 in the same village was also the subject matter in the claim case and in the suit as originally framed. It was described as lot No. 2 in the plaint schedule and the Plaintiff's claim in respect of that lot was based on a maintenance deed dated 25 -10 -35 (Ext. 2) executed in her favour by her husband (judgment -debtor). The decree -holder's contention was that the maintenance deed as well as the sale -deed (Ext. 1) executed by Binaik Panda were fraudulent and collusive documents and that the' real owner of both the lots was none else but the husband of the Plaintiff who was the judgment -debtor in that execution petition and that these transfers were brought about with a view to defeat the rights of the decree -holder.
(3.) THE learned Munsif, however, held that the maintenance deed was bone fide and valid and that the Plaintiff's husband lost all interest in lot No. 2 after execution of the maintenance deed in his wife's favour. He, therefore, decreed the Plaintiff's suit in respect of that lot but as regards lot No. 1 he held that the Plaintiff had failed to establish her title and therefore dismissed her suit. On appeal, the learned Subordinate Judge maintained the order of the trial Court.;

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