BHOJAI Vs. SALIM ULLAH AND OTHERS
HIGH COURT OF ALLAHABAD
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(1.)THIS is an appeal by a defendant, and it arises out of a suit for setting aside a final decree passed under O. XXXIV, R. 5. C. P. C. and the execution proceedings based thereon which terminated in the auction sale of a house belonging to the plaintiff, on the ground of fraud.
(2.)THE house was purchased by Hayat Ullah plaintiff on 10-11-1937. Adjoining this house is a house owned by Sakhawat Ali and Hashmat Ali defendants Nos. 2 and 3 who are brothers. These houses are situate within the municipal limits of Allahabad. Formerly, both these houses were designated by one single municipal number, i.e., No. 136, but later the house in dispute was described as No. 136-A and the house owned by defendants Nos. 2 and 3 as No. 136 in the municipal records. Defendant No. 1, the Municipal Board of Allahabad, brought suit No. 174 of 1943 at Allahabad for the recovery of Rs. 16-12-0 as arrears of house and water taxes in respect of the houses against the plaintiff and defendants Nos. 2 and 3 and a preliminary decree for sale under O. XXXIV, R. 4 of the C. P. C. was passed in that suit on 11-4-1944. At the time of the suit the houses were not only described as No. 136 but were entered in the names of defendants Nos. 2 and 3 alone in the municipal records. These facts are not in dispute.
The case of the plaintiff is that ever since the house in dispute was purchased by him, defendants Nos. 2 and 3 were keen on ousting him and taking possession of the house somehow or other. With that object in view they filed certain cases against the plaintiff with regard to the house, but lost them. Thereafter, they prevailed upon the servants of defendant No. 1. the Municipal Board of Allahabad, to file suit No. 174 of 1943 impleading the plaintiff also as one of the defendants. The scheme in pursuance of which this was done was that the plaintiff should remain ignorant of the suit and the execution proceedings, and in execution of the decree passed in the suit the house belonging to him should be secretly sold at auction and purchased by defendants Nos. 2 and 3 at a nominal price. The plaintiff was living at Calcutta with his family for several years past, but he came to learn of the suit and thereupon filed a defence and contested the suit. At the stage of the preliminary decree, therefore, defendants Nos. 2 and 3 did not succeed in their design. Subsequently, however, when proceedings for the preparation of final decree and for sale in execution thereof were taken, defendants Nos. 2 and 3 in collusion with the Pairokar of defendant No. 1 managed to keep the plaintiff entirely in dark about the proceedings by getting false and fraudulent service of notices effected against the plaintiff at Allahabad, although the plaintiff was throughout at Calcutta. It is alleged that no sale proclamation was ever made and everything pertaining to the sale was done with utmost secrecy so that attention of people might not be attracted. The house belonging to the plaintiff was ultimately shown as having been auctioned for a sum of Rs. 70 in favour of Bhojai defendant No. 4, who according to the plaintiff was a Benamidar for defendant No. 2. It is said that the house had been rebuilt by the plaintiff after the purchase and its value at the time of the alleged auction sale was about Rs. 5,000. The main defence to the suit is that the final decree and the sale proceedings are not vitiated by fraud and are not liable to be set aside, and it is this defence alone that is relevant for the purpose of the appeal.
(3.)THE trial Court held that no fraud was proved and dismissed the suit. On appeal by the plaintiff, the learned Civil Judge disagreed with the conclusion of the trial Court and found that the final decree was obtained by fraud in the manner alleged by the plaintiff and was the result of a collusion between the defendants. The judgment of the trial Court was, accordingly, reversed by the learned Judge, and the suit of the plaintiff was decreed. Bhojai defendant No. 4 who claims to be the auction purchaser of the house in dispute has preferred this appeal.
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