RAMKISHUN LAL Vs. UMESH CHANDRA SINHA
LAWS(PAT)-1959-9-16
HIGH COURT OF PATNA
Decided on September 24,1959

RAMKISHUN LAL Appellant
VERSUS
UMESH CHANDRA SINHA Respondents


Referred Judgements :-

DURGA SINGH V. SUGAMBAR SINGH [REFERRED TO]
RAM RUP SINGH V. JANG BAHADUR SINGH [REFERRED TO]
SUKHDEO GOND V. BRAHMADEO TEWARI [REFERRED TO]
BISHUNATH TEWARI VS. UNION OF INDIAMIRCHI [REFERRED TO]
RAMDHARI SINGH VS. SALIGRAM SINGH [REFERRED TO]
RAMSARAN SAH VS. DEONANDAN SINGH [REFERRED TO]
AJAB LAL DUBEY VS. HARI CHARAN TEWARI ALIAS HARI TEWARI [REFERRED TO]


JUDGEMENT

Shib Chandra Prasad, J. - (1.)Defendants are the appellants. They have come up in appeal against the concurrent judgments of the Courts below in a suit filed by the plaintiffs for adjudication that the sale held in Money Execution Case No. 1188 of 1937 of the Munsif Second Court, Bhagalpur, in respect of the right of redemption of the plaintiffs with regard to the properties mentioned in the schedule of the plaint, which had been given in bharna to these defendants by the plaintiffs in 1931, being tainted with fraud, did not extinguish the right of redemption of the plaintiffs, ana the consequential relief sought for was that a decree for redemption should be passed in their favour. It was alleged by the plaintiffs that they had tendered the bharna money after the due date o payment but the defendants declined to take it on the ground that their right of redemption had been extinguished by the auction-sale mentioned above. Plaintiffs held an enquiry and learnt that the defendants had fraudulently got the properties sold and had purchased them in the above-mentioned money execution case for a "grossly low sum of Rs. 175/-, although the properties were worth several thousand rupees.
(2.)It appears that the defendants had obtained an instalment decree for money against the plaintiffs and had attached some of the properties which were other than the properties in dispute. When there was default, the decree was executed and some of those properties were sold and purchased by these defendants. It was then alleged by the plaintiffs that there was an agreement between them and the defendants that they would not any further execute the decree for the balance amount which would rest satisfied by the sale already held and there would be no subsequent realisation. This assurance by the defendants lulled the plaintiffs and they became satisfied that they did not owe any more sum on the previous decree, but the defendants with the dishonest intention to jeopardise the right of redemption of the pjaintiffs in these properties executed the dercee for the balance amount and after having fraudulently got all the processes in the execution case suppressed put the right of redemption of the plaintiffs in these properties to sale and purchased it themselves. It was alleged by the plaintiffs that this purchase by the defendants in the execution of that decree could not, r.nd did not, in law extinguish their right of redemption.
(3.)In defence, the defendants stated that the suit was barred under Section 47 of the Code of Civil Procedure; that there was an adjustment of the decree and this adjustment could not be taken cognizance of by the Court except under Order 21, Rule 2 of the Code of Civil Procedure, but that having not been complied with it was not open to the Court to act upon that adjustment. The main contention of the defendants, however, was that there was no such agreement between the parties by which these defendants had given up their right to execute the balance of their decretal dues against the plaintiffs; that they had not suppressed the processes of the execution case and that the sale had taken place with full knowledge of the plaintiffs. Consequently, the right of redemption had been validly extinguished by that sale and the plaintiffs had no right to claim redemption,


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