SHEO NARAIN SAHU Vs. LAKHAN SAHU

JUDGEMENT

(1.) The plaintiff-appellants sued for declaration of title and confirmation or recovery of a certain property on the ground that they had purchased this property on 9 August 1932 in execution of a decree dated 6 March 1930 obtained against the family of defendants 2nd party which consisted of two brothers Ramcharan Goala and Nathuni Goala, the original defendants 3 and 4, and their sons and grandsons. The suit was contested by defendants 1 party who claimed the property on the basis of a purchase at an auction sale dated 16th March 1932 in execution of a decree dated 18 March 1930 obtained by defendants 3 party against Nathuni Goala, the original defendant 4, who, according to them, was the karta of the joint family of defendants 2nd party so that the decree against him bound the family. The trial Court dismissed the suit on three grounds: first, that the plaintiffs decree dated 6 March 1930 created no charge over the property; secondly that the suit was barred by limitation as brought more than one year after the rejection of an application under Order 21, Rule 58, Civil P. ft, brought by the plaintiffs in respect of this property on 10th March 1932; and thirdly that in any case defendants 1 party were bona fide purchasers for value without notice of any prior charge in favour of the plaintiffs and that, therefore, the plaintiffs by their purchase dated 9 August 1932 could claim no priority over the contesting defendants purchase of 16 March 1932. The lower appellate Court held that the plaintiffs decree of 6 March 1930 created a valid charge over the property but agreed with the trial Court on the other two points and dismissed the appeal.

(2.) On appeal the plaintiff-appellants challenge the two findings which are against them and on behalf of the respondent-defendants 1 party an attempt was made to displace the finding of the lower appellate Court that the plaintiff-appellants decree of 6 March 1930 created a charge on the property. It will be convenient to deal with this third matter first. The decree of 6 March 1930 was passed on compromise. We were referred to the decision in P. Sivanna V/s. Venkata Krishanamurthi 19 Ind.Cas. 478 where it was held that a mere covenant not to" alienate property was insufficient to create a charge in a compromise decree. In the petition of compromise embodied in the decree (EX. 11), however, it was clearly stated that the property would remain attached "and liable" until satisfaction of the entire decree. The two words which I have placed in inverted commas to my mind clearly distinguish this decree from the facts of the case cited and show that a charge was created over the property. I next turn to the question of limitation. Exhibit I-2 is the entry in the Eegister of Miscellaneous Judicial Oases showing that Ramdhani Sao, brother of plaintiff 1 and father of plaintiff 5, filed an application on 10 March 1932 under Order 21, Rule 58, Civil P. C, for release of properties sought to be sold in execution case No. 1307 of 1931 which was rejected on 14 March 1982. It was not disputed that that application was filed in the execution case in which defendants 1 party purchased the property. It may be taken that that decision rejecting the application under Order 21, Rule 58 became final and the order was, therefore, conclusive under Order 21, Rule 63 as it is not the case of the plaintiff-appellants that any suit was filed to establish the plaintiffs right within one year. It is important to notice, however, that the application under Order 21 Rule 58 was filed and rejected not only before the property was purchased by the defendants 1 party but also before the plaintiff- appellants had any interest in the property beyond the charge created by the decree of 6 March 1930. That charge would not entitle the plaintiffs to have the property released though possibly it might entitle them to have the property sold subject to that charge. There is nothing to show that the question whether the plaintiff-appellants had a charge over the properties or the question whether the properties should be sold subject to any such charge was either directly or indirectly raised by the application under Order 21, Rule 58, Civil P. C. The decision or the rejection of that application, therefore, will not bar the plaintiff- appellants present suit which is based on a title which is independent of anything directly or indirectly decided by the rejection of the application under Order 21, Rule 58, Civil P.C.

(3.) Both the lower Courts held that defendants 1 party at the time of their purchase in execution on 16 March 1932 had no notice of the prior charge in favour of the plaintiff-appellants. At the beginning of the argument it was stated on behalf of the plaintiff-appellants that they would challenge this finding, but in the course of argument no attempt was made to show that this was not a valid finding of fact. It was conteneded that in any case defendants 1 party could not claim the whole property because the decree in execution of which they purchased was not a decree against the entire family of defendants 2nd party but only against Nathuni Goala. It is, however, in evidence that other members of defendants 2nd party brought a title suit on 14 April 1932, and tried to set aside the decree of the defendants 3 party and the purchase made in execution thereof by defendants 1 party. There was a compromise made in that suit on 11 December 1933, between those of defendants 2nd party who were plaintiffs in the suit and defendants 1 party by which the sale was to be set aside on Rs. 950 being paid by a certain date failing which the sale would be confirmed. The money was not paid in accordance with the compromise and, therefore, the sale stood confirmed. Now no attempt has been made before us to show that the proceedings in that title suit were collusive and in the circumstances I consider that the lower appellate Court was right in thinking that the plaintiff-appellants cannot now challenge the fact that defendants 1 party purchased the entire interest of defendants 2nd party in the property. There remains, therefore, the question whether the charge created by the compromise decree of 6 March 1930, in favour of the plaintiffs could be enforced against defendants 1 party who were bona fide purchasers at an auction sale in execution of a decree binding on the family of defendants 2nd party without notice of the prior charge.