- (1.) THIS is an appeal by one the defendants in the suit. Bishwanath Bajpai plaintiff filed a suit for the declaration that the suit plots belonged to defendant No. 3 Chhedi Barai and they are liable to be attached in execution of the decrees of the plaintiff and other creditors against Chhedi Barai. The plaintiff also prayed for the relief of cancellation of a gift deed dated 1st March, 1954 executed by Chhedi Barai in favour of the defendants Nos. 1 and 2.
(2.) PLAINTIFF 's case was that he had filed No. 456 of 1964 against defendant No. 3 Chhedi Barai on the basis of a promissory note executed by the latter. The suit plots were attached before judgment in that suit. Objections were filed by defendants Nos. 1 and 2 and the plots do suit were released in their favour. These defendants claimed that they were the owners of the plots in dispute by means of the gift deed dated 1st March, 1954 executed is their favour by Chhedi Barai. The order releasing the suit plots in favour of defendants Nos. 1 and 2 was challenged in the suit and it was further stated that the gift deed dated 1st March, 1954 in favour of defendants 1 and 2 was a fictitious document and it was executed to practise fraud on creditors of defendant No. 3. It was also pleaded that Chhedi was not the bhumidhar of the plots in suit on the date of the execution of the gift deed and as such he could not convey any rights to the defendants Nos. 1 and 2. Defence was a denial of the plaint case and it was further pleaded that the gift deed was (not?) executed in order to defeat the claims of the creditors and the suit was barred by res judicata and the provisions of Order 38, Rule 8 of the Civil P. C. hereinafter referred to as the Code. The trial court dismissed the suit holding that the gift deed in suit was not a fictitious document and not liable to be cancelled and that the plaintiff (defendant?) could validly transfer the plots as he was the bhumidhar thereof. The trial court also held that the suit was maintainable and the plaintiff had a right to sue. The suit was not barred by res judicata nor by the provisions of Order 38, Rule 8 of the Code. An appeal was filed by the plaintiff. The appeal was allowed and the judgment and decree were set aside and the plaintiff's suit for the declaration and the relief of cancellation was decreed. The lower appellate court affirmed the finding of the trial count that the defendant No. 3 was a bhumidhar on 1st March, 1954 and was competent to execute the gift deed but it was held that the gift deed was not acted upon and was not a genuine deed. The deed of gift was held to be a fictitious and sham transaction.
(3.) A preliminary objection to the maintainability of the appeal has been taken by the learned counsel for the respondent. He has also moved an application under Order 41, Rule 27 of the Code seeking to bring on record a certified copy of dakhalnama and certified copies of two orders passed by the executing court showing that the execution was struck off in full satisfaction. He had alleged in the above application that the suit plots were sold in execution of the decree in suit No. 456 of 1964 and that one Prem Kumar Tiwari had purchased the property in auction sale and that the sale had been subsequently confirmed and the execution case was struck off in full satisfaction on the 8th April, 1972. Learned counsel for the appellant (respondent?) contended that in view of the fact that the sale in favour of Prem Kumar Tiwari had been confirmed the present appeal had become infructuous and was not maintainable. In support of his contention he relied on the decision of Janakraj v. Gurdayal Singh, AIR 1967 SC 608 and particularly on a passage from the aforesaid judgement at p. 610 which reads as follows : "It does not seem ever to have been doubted that once a sale is confirmed the judgment debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed." Learned counsel for the respondent contended that a confirmation of sale takes place under Order 21, Rule 92 of the Code. That Rule has undergone a change introduced by the Allahabad High Court and makes the confirmation subject to Rule 58 (2) of O.21 of the Code. He further contended that a decision under Rule 58 (2) becomes final but is subject to the provisions of Rule 63 of Order 21 of the Code. The plaintiff filed a suit under Order 21, Rule 63 of the Code and the present appeal arises out of that suit. Consequently, he contended that the matter had not become final and the appeal could not be said to have become infructuous. Learned counsel for the respondent thereupon contended that Rule 92 as amended by this Court only refers to Rule 58 (2) of Order 21 of the Code and does not make any reference to Rule 63. He also contended that there was no order under Rule 58 (2) in the present case as the order was passed under Order 38, Rule 8 of the Code and the provisions of Rule 92 had no application to R.8 of O.38 of the Code.;