- (1.) THIS is a second appeal filed on behalf of the defendant. The plaintiff-respondent had obtained a money decree against one Sabir Husain. After the passing of the decree, and probably after the application for execution had been filed, on 23-3-1932, Sabir Husain transferred the property now in dispute in the name of his wife, the appellant, for payment of her dower debt. On 8-3-1932, the property was attached by the decree-holder. On 9-4-1932, the appellant filed an objection, under Order 21, Rule 58, Civil P. C. She claimed that her husband had sold the property to her in lieu of her dower debt, that she was the owner in possession of the property and that her husband had no interest in the property which could be attached or sold, in execution of the money-decree. This objection was however, rejected on 12-4-1932, and the learned munsif passed the following order : "this is an objection by Mst. Aziz Jahan Begum under Order 21, Rule 58, Civil P. C. The attachment was made on 8-3-1932. The present objection was lodged on 9-4-1932. It has been unnecessarily and designedly delayed. It is summarily rejected. " After the rejection of the objection under Order 21, Rule 58 the decree-holder proceeded with the execution of the decree and on certain dates in the year 1933 the property "was sold in two lots. The decree-holder purchased the property and oh 22-11-1933, he was delivered formal possession. On 23-2-1944, the decree-holder auction purchaser filed the suit, out of which this appeal has arisen, for possession of the property and for mesne profits. The suit was resisted on several grounds and five issues were framed by the trial court which were as follows : "1. Whether this court had no jurisdiction to attach the property in suit? 2. Whether the defence is, barred under Order 21, Rule 63, C. P. C. ? 3. Whether defendant 1 was in possession of the properties in suit from before the execution of the sale in lieu of dowers? If so its effect? 4. To what mesne profits, if any, are the plaintiffs entitled? 5. To what relief, if any, are the plaintiffs entitled? The first issue was decided in plaintiff's favour and the court also decided issues Nos. 4 and 5. The issue No. 3 was, however, left undecided as on issue No. 2 the court came to the conclusion that the defence was barred by the provisions of Order 21, Rule 63, Civil P. C.
(2.) THE defendant filed an appeal and the lower appellate court agreed with the decision of the trial court and dismissed the appeal.
(3.) WHEN the case came up for hearing before a learned single Judge he referred it to a Division bench and, by reason of certain observations in a Division Bench ruling of this Court in--Kanhaiya Lal v. Banke Behari', AIR 1938 All 542 (A), the case was referred to a Full Bench for decision.;