RAM LAKHAN Vs. MIRZA MAHBUB HASAN BEG

JUDGEMENT

(1.) THIS is an execution first appeal against the judgment and decree of the Civil Judge, Bahraich, dated 19th November, 1946.

(2.) IT appears that a decree for costs and some money was obtained by respondents 1 to 4 against the respondent No. 5 on the 30th March, 1935. The decree-holders put their decree into execution on the 30th March, 1938. Some proceedings were taken but ultimately the execution application was ordered to be consigned to record room on the 15th October, 1938. A fresh application for execution was made on 1st May, 1941 and a prayer for realisation of the decretal amount by attachment and sale of a house of respondent No. 5 was made. During the pendency of this execution, an application was made on the 27th August, 1941 in which a prayer was made that the house 'sultan Manzil' of the judgment-debtor be attached under Order 39. Rule 1, Civil p. C. Reference was also made to Section 151 and Order 21, Rule 51 (54?), Civil P. C. in the heading given to the application dated 27th August, 1941. The Court passed an order in the following words: "issue a temporary injunction as prayed". The injunction was then issued and it was served by a proclamation made on the 5th September, 1941. The execution application was ordered to be consigned to the record room on the 17th august, 1942 but it was mentioned in the order that the property shall remain under attachment. A third application for execution was made on the 20th August, 1942, and in this application also a prayer for the attachment and sale of 'sultan Manzil' was made. This application also proved infructuous and was ordered to be consigned to the record room on 30th January, 1943. Once again the order that the property shall remain under attachment was made when the application was ordered to be consigned to the record room. A fourth application for execution was made on the 3rd February, 1945 and this also was consigned to the record room on the 15th May, 1945. Subsequently the last application for execution was made on the 9th February, 1946 and a prayer was made that the decretal amount be realised by sale of the attached property. It was in these proceedings that an objection was made by Ram Lakhan who had on the 3rd november, 1945 obtained a sale-deed in respect of 'sultan Manzil' from the judgment-debtor for a sum of Rs. 25,000/ -. The main grounds taken up in the objection were that there had been no attachment of 'sultan Manzil' and as such it could not be sold in execution; secondly the entire proceedings of sale were irregular and lastly that the objector was a bona fide transferee for value without notice and as such the sale-deed in his favour was binding on the parties to the decree. A number of issues were framed by the learned Civil Judge before whom the execution proceedings were pending and they are detailed in the judgment.

(3.) THE learned Civil Judge, after considering the proceedings which had been taken in the various execution applications, came to the conclusion that the order passed on the application dated the 27th August, 1941 was in effect an order of attachment and that there had been an attachment of the property. Any sale made by the judgment-debtor in favour of the objector, after this attachment, was therefore, invalid. It therefore, dismissed the objection made by the objector. The objector Ram Lakhan has now come up in appeal.