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Ram Bharose Lal Vs. Sukhdei and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1746 of 1970
Judge
Reported inAIR1975All90
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5(2); Code of Civil Procedure (CPC) - Order 21, Rules 58 and 63
AppellantRam Bharose Lal
RespondentSukhdei and ors.
Appellant AdvocateJ.N. Agarwal and ;Yogesh Agarwal, Advs.
Respondent AdvocateBhawani Prasad, Adv.
DispositionRevision allowed
Excerpt:
.....amount deposited in the executing court - judgment debtor has transferred her share before the suit of decree has been filed - objection raised by transferors that the plots cannot be attached - held, question of whether the property has to be attached or not can be decided by consolidation authority - held, appeal under section 5(2) of u.p. consolidation of holding act, 1954 cannot be abated - the above question can be decided only by order 21 and rule 63 of code of civil procedure,1908. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions..........and sale in execution of the decree is conclusive and is subject only to the result of the suit filed under order xxi. rule 63 if the suit is dismissed or abates, then the order will become final. it cannot obviously be affected by any decision of the consolidation authorities. the consolidation authorities have not been invested with any jurisdiction to decide whether any plots are or are not liable to attachment and sale in execution of a decree. this question can only be decided in a suit filed under order xxi, rule 63 and it is only the decision in such a suit which can override the order of the executing court upon an objection under order xxi, rule 58. since no relief whatever can be obtained by the applicant from the consolidation authorities in this regard, it must.....
Judgment:
ORDER

G.C. Mathur, J.

1. This is a plaintiff's revision under Section. 115 of the Code of Civil Procedure, against an order of the First Temporary Civil and Sessions Judge, Etah, abating the appeals pending before him under Section 5 (2) of the U. P. Consolidation, of Holdings Act.

2. The applicant filed a suit against Srimati Devki, original opposite Party No. 5 and on November 19, 1967, obtained a simple money decree against her. In execution of the decree, he got attached certain agricultural plots and the crops standing thereon. The Crops were sold for Rs. 700/- and the amount was deposited in the executing court. An objection was filed by opposite parties Nos. 1, 2 and 3 under Order XXI, Rule 58 of the Code of Civil Procedure, contending that under a sale deed dated September 17, 1965, Srimati Devki had transferred her share in the plots to Opposite Parties Nos. 1, 2 and 3 and that these plots are not liable to attachment and sale in execution of the decree against Srimati Devki. This objection was allowed by the executing court on June 1, 1968. Thereupon the applicant filed a suit in which he prayed for the following reliefs:--

'1. That a declaration be given that the agricultural plots were liable to attachment and sale in execution of the decree in the earlier suit against Srimati Devki; and

2. That the applicant was entitled to the sum of Rs. 700/- deposited in the executing court as price of the crops standing on the plots at the time of attachment.'

This suit was decreed by the Munsif on October 27, 1969, for the declaration that one-third share in the plots was liable to attachment and sale in execution of the decree dated November 19. 1967, but was dismissed with respect to the sum of Rs. 700/-, the price of crops. Against this decree, both parties filed appeals.

3. In the appeals, applications were made by opposite parties Nos. 1. 2 and 3 that consolidation proceedings were going on in the village in which the agricultural plots were situate and prayed that the appeals be abated under Sec. 5 (2) of the U. P. Consolidation of Holdings Act. After hearing both parties, the Lower Court was of the opinion that the disputes involved in the appeals were covered by the provisions of Section 5 (2) and accordingly passed an order abating both the appeals.

4. Learned Counsel for the applicant has contended that the suit out of which the appeals arose before the lower courts, was not covered by the provisions of Section 5 (2) of the U. P. Consolidation of Holdings Act and, therefore the Lower Court had no jurisdiction to abate the appeals. The suit was one filed under the provisions of Order XXI, Rule 63 of the Code of Civil Procedure. This rule provides:--

'Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.'

It thus appears that the order dated June 1, 1968, passed on the objections under Order XXI, Rule 58, holding that the plots were not liable to attachment and sale in execution of the decree is conclusive and is subject only to the result of the suit filed under Order XXI. Rule 63 If the suit is dismissed or abates, then the order will become final. It cannot obviously be affected by any decision of the consolidation authorities. The consolidation authorities have not been invested with any jurisdiction to decide whether any plots are or are not liable to attachment and sale in execution of a decree. This question can only be decided in a suit filed under Order XXI, Rule 63 and it is only the decision in such a suit which can override the order of the Executing Court upon an objection under Order XXI, Rule 58. Since no relief whatever can be obtained by the applicant from the consolidation authorities in this regard, it must necessarily follow that the suit cannot be abated under Section 5, (2) of the Consolidation of Holdings Act.

5. It has further to be noticed that in the present case the applicant has challenged the sale deed dated September 17, 1965, said to have been executed by Srimati Devki in favour of opposite parties Nos. 1, 2 and 3 on the ground that it was a fraudulent transfer within the meaning of Section 53 of the Transfer of Property Act and was voidable at the instance of the applicant. A voidable transfer can only be avoided in a Civil Suit and cannot be avoided in consolidation proceedings. See Gorakh Nath Dube v. Hari Narain Singh. AIR 1973 SC 2451. Since the main question in this suit is whether the transfer was a fraudulent transfer and whether the applicant was entitled to avoid it, the suit was not covered by the provisions of Section 5 (2) of the U. P. Consolidation of Holdings Act.

6. For the reasons stated above, I am of the opinion that the appeals pending before the Lower Court could not be legally abated under Section 5 (2) of the U. P. Consolidation of Holdings Act. The revision is accordingly allowed and the order of the First Temporary Civil and Sessions Judge, Etah, dated September 16, 1970, abating the two appeals, is set aside. The appeals will be restored to their original numbers and disposed of in accordance with law. There will be no order as to costs.


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