An attachment referred to in Section 64, C.P.C. is the attachment under which the execution sale is held and not an attachment of a creditor who was paid off.

JUDGMENT - Mallvankar, J.

1. This is an appeal against the judgment and decree passed by the Assistant Judge, Dhulia, on 7th May 1965 in Civil Appeal No. 294 of 1963, allowing the appeal and decreeing the suit being Regular Civil Suit No. 275 of 1962 which was dismissed by the trial Court with costs. The appeal arise this way.

2. The present appellant is original defendant No. 1 and respondent Bos. 2 and 3 are original defendants Nos. 2. and 3, Respondent No. 1 is the original plaintiff, Defendant No.1 had obtained a money decree against defendant Nos. 2 and 3 in Regular Civil Suit No. 312 of 1950. The property in dispute which is a plot of land originally belonged to one Balabai wife of Ishram. In the year 1947 defendant No. 2 had purchased this plot from Balabai . On 20th February 1955, defendant No. 2 sold the plot to the plaintiff for Rs. 500 under a registered, Ex. 45. After the purchase, the plaintiff also constructed a cattlelshed on it. Since then the plaintiff was in possession and enjoyment of the plot along with an adjacent plot with which we are not concerned in this appeal. Defendant No. 1, after he obtained the money decree, had filed Regular Darkhast No. 630 of 1959 against defendants No. 2 and 3 and had also prayed for the recovery of the amount under the decree by attachment and sale of the plot of land in dispute. On 18th July 1960 the order of attachment came to be passed and later on the attachment. In April 1961, when the suit plot was put up for sale, he came to know about this attachment and filed Miscellaneous Application No. 53 of 1961 for raising the attachment. The Court, however, did not adjourn the sale, with the result that the plot came to be sold by auction on 29th April 1961 and was purchased by defendant No. 1 decreeholder. In due course, he also obtained a sale certificate on 25th July 1962. The plaintiff also alleged that in attaching the suit plot and bringing it to sale, defendant No. 1 had perpetrated fraud on the Court. The miscellaneous application filed by the plaintiff ultimately came to be dismissed on 5th October 1961. The plaintiff, therefore, filed this suit for a declaration that the suit plot bearing Gram Panchayat No. 499 with the structure standing thereon situate in the village of Mehergaon in Dhulia Taluka of the same was not liable to be attached and sold in execution of the decree obtained by defendant No. 1 against defendants Nos. 2 and 3, and that the auction sale was void. He also prayed for permanent injunction restraining defendant No. 1 from taking possession of the plot.

3. The suit was contested by defendant No. 1 on several grounds. One of the grounds was that the sale-deed obtained by the plaintiff from defendant No. 2 was bogus, sham, colourable, fictitious and without consideration, and the same was executed to defeat his claim. He also denied that the plaintiff was ever in possession of this plot of land or had constructed any building thereon. He contended that the possession of the plot continued with defendants Nos. 2 and 3. He further contended that he had filed Regular Darkhast No. 511 of 1954 in January 1955 and in that Darkhast he had got the suit plot attached on 18th January 1955. He had also obtained an injunction against defendants Nos. 2 and 3 restraining them from entering into any transaction of sale of the suit plot privately. According to him, therefore, the sale being effected by defendant No. 2 in favour of the plaintiff while the attachment in Regular Darkhast No. 511 of 1954 was subsisting, the same was void. He also claimed for compensatory costs. Defendants Nos. 2 and 3 were proceeded against ex parte.

4. The learned trail Judge found that the sale deed dated 20th February 1955 executed by defendant No. 2 in favour of the plaintiff was bogus, sham, colourable and fictitious document executed with a view to defeat the claim of defendant No. 1 against defendants Nos. 2 and 3, and that the sale-deed was without consideration. He, therefore, came

Click Here to Read the rest of this document