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Suraj Bux Singh Vs. Lokendra Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1944All176
AppellantSuraj Bux Singh
RespondentLokendra Singh and ors.
Excerpt:
.....decision of the execution court in the objection under order 21, rule 58 final, and, as such, suraj bux singh had ceased to have any interest in the properties in dispute. to the decision dated 14th february one of us was a party, and the present bench is satisfied that the reasons given in the appeals decided on 14th february conclude the present appeal. it follows that if the attachment had not become null and void it would have been open to the decree-holders to ask the execution court to appoint a receiver of the property under attachment, and to direct that the decrees be satisfied from the usufruct of the property. we, therefore, hold that the decision appealed against is perfectly correct and dismiss this appeal......mai and behari lal filed an objection maintaining that the properties that are in dispute in the present appeal belonged to lokendra singh, and that he had wrongly omitted the same from the list of properties contained in the application. this objection was considered by the special judge in accordance with the provisions of section 11 and decided by him. suraj bux singh, the appellant in the present appeal, being aggrieved by that decision has filed the present appeal. it appears that the creditors named above had, prior to the passing of the encumbered estates act, obtained simple money decrees against lokendra singh and had attached the properties in dispute in the present appeal in execution of those decrees. pending the attachment the properties in dispute were sold by lokendra.....
Judgment:

Iqbal Ahmad, C.J.

1. This appeal arises out of proceedings under the Encumbered Estates Act. The facts are now not in controversy and are as follows : On 26th October 1936, one Lokendra Singh applied under Section 4, Encumbered Estates Act, and his application was, in due I course, forwarded by the Collector to the Special I Judge. In his application Lokendra Singh had not I shown certain properties as belonging to him and, after the publication of the usal notices, two creditors of Lokendra Singh, named Matro Mai and Behari Lal filed an objection maintaining that the properties that are in dispute in the present appeal belonged to Lokendra Singh, and that he had wrongly omitted the same from the list of properties contained in the application. This objection was considered by the Special Judge in accordance with the provisions of Section 11 and decided by him. Suraj Bux Singh, the appellant in the present appeal, being aggrieved by that decision has filed the present appeal. It appears that the creditors named above had, prior to the passing of the Encumbered Estates Act, obtained simple money decrees against Lokendra Singh and had attached the properties in dispute in the present appeal in execution of those decrees. Pending the attachment the properties in dispute were sold by Lokendra Singh to Suraj Bux Singh on 28th April 1933. Suraj Bux Singh in the execution proceedings filed objections under Order 21, Rule 58, Civil P.C. Those objections were, however, dismissed by the execution Court and no suit under Order 21, Rule 63 was thereafter filed by Suraj Bux Singh. The creditors maintained before the Special Judge that the failure of Suraj Bux Singh to file a suit under Order 21, Rule 63, had the effect of making the decision of the execution Court in the objection under Order 21, Rule 58 final, and, as such, Suraj Bux Singh had ceased to have any interest in the properties in dispute. This objection of the creditors was, in our judgment, rightly overruled by the Special Judge. The creditors also maintained that the sale in favour of Suraj Bux Singh was fraudulent and offended against the provisions of Section 53, T.P. Act. This objection of the creditors was also overruled by the Court below.

2. The creditors lastly contended that, in view of the attachment made by them, the provisions of Section 64, Civil P.C., came into play, and, as such, the sale in favour of Suraj Bux Singh was subject to the claims that they had under the decrees in execution of which the properties were attached. This contention of the creditors was upheld and given effect to by the Special Judge. Three other first appeals arising out of the same proceedings before the Special Judge were heard and decided by a Bench of this Court two days ago, viz., on 14th February, and the very question that has been just indicated directly arose for consideration in those appeals. Those appeals arose out of the very judgment which is the subject of appeal in the present appeal. To the decision dated 14th February one of us was a party, and the present Bench is satisfied that the reasons given in the appeals decided on 14th February conclude the present appeal. It is true that all that Section 64, Civil P.C., provides is that any private transfer of the property under attachment shall be void as against all claims enforceable under the attachment, and it is also proved that, in view of the provisions of Section 7(1)(a), Encumbered Estates Act, the attachments made by the creditors became null and void on the date that the Collector passed' an order under Section 6, Encumbered Estates Act. Nevertheless the rights that were acquired before the attachment became null and void remained intact and it cannot be disputed that the right acquired by the attaching creditors was to realize their decrees from the properties in dispute. It was contended by Mr. P.L. Banerji that the only right that the decree-holders acquired by attachment was to put the proper-lies to sale and, as no sale was effected in execution of the decree and no sale can now, in view of the provisions of the Encumbered Estates Act, be effected, the rights under the attachment cannot be enforced. We are unable to agree with this contention. The attachment entitled the decree-holders to realize the decretal amount from the attached property by one of the modes provided for by the. Code of Civil Procedure for the execution of decrees. One of such modes is to execute the decree by appointment of a receiver. It follows that if the attachment had not become null and void it would have been open to the decree-holders to ask the execution Court to appoint a receiver of the property under attachment, and to direct that the decrees be satisfied from the usufruct of the property. This the decree-holders are not now competent to do, but there are no grounds to hold that the sale that was subject to their right to realise the decretal amount from the attached properties ceased to be subject to that liability after the attachment became null and void in view of the provisions of a special enactment passed by the Provincial Legislature. We, therefore, hold that the decision appealed against is perfectly correct and dismiss this appeal. But in the circumstances of the present case we direct the parties to bear their own costs of this appeal. The cross-objections are not pressed and are dismissed. The record of the case will be sent down to the Court below forthwith.


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