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Sita Ram Vs. Subheda Kuar - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All551(2); 24Ind.Cas.695
AppellantSita Ram
RespondentSubheda Kuar
Cases ReferredMalkarjun v. Narhari
Excerpt:
civil procedure code (act v of 1908), section 47 - execution proceeding fainted with fraud--suit to set aside sale, whether barred--declaration--limitation. - .....of the decree and prayed that the present plaintiff, musammat subheda kuar, be declared to be the legal representative of the deceased. subheda kuar objected denying that she was such legal representative. her objection was allowed on february 2, 1902, and the court held that she was not the legal representative of the deceased baldeo singh. tin's order became final, but inspite of it the present appellant applied for execution of the decree in 1905 and in his application named the plaintiff as the legal representative of the deceased. i am informed that he made the application for execution not as the legal representative of subachan kuar who had in the meantime died, but on the allegation that he was the real owner of the decree. execution of the decree was transferred to the court of.....
Judgment:

P.C. Banerji, J.

1. The facts of the case out of which this appeal arises are these. One Musammat Subachani obtained a decree in the Court of Small Causes at Cawnpore against one Baldeo Singh. After the death of Baldeo Singh she applied for execution of the decree and prayed that the present plaintiff, Musammat Subheda Kuar, be declared to be the legal representative of the deceased. Subheda Kuar objected denying that she was such legal representative. Her objection was allowed on February 2, 1902, and the Court held that she was not the legal representative of the deceased Baldeo Singh. Tin's order became final, but inspite of it the present appellant applied for execution of the decree in 1905 and in his application named the plaintiff as the legal representative of the deceased. I am informed that he made the application for execution not as the legal representative of Subachan Kuar who had in the meantime died, but on the allegation that he was the real owner of the decree. Execution of the decree was transferred to the Court of the Munsif of Cawnpore and a half share in certain groves was attached as the property of Baldeo Singh which was sold by auction and was purchased by the appellant. Thereupon, the present suit was brought by the plaintiff for a declaration that the execution proceedings were fraudulent and had been taken against her without her knowledge and that the sale did not affect her interest in a half share of the grove which belonged separately to her and not to Baldeo Singh The lower Appellate Court in concurrence with the Court of first instance found that the property was the separate property of the plaintiff and did not belong to Baldeo Singh, that the application for execution made by the appellant and all subsequent proceedings in connection there with were fraudulent, that the plaintiff was kept out of all knowledge of those proceedings by the fraud of the appellant and that she was wholly ignorant of those proceedings. The claim of the plaintiff was accordingly decreed. The first contention raised in this appeal is that the suit is barred by Section 47 of the Code of Civil Procedure. As to this it is sufficient to say that on the finding of the Court below that the whole of the execution proceedings were tainted with fraud and had been taken in fraud of the plaintiff, that section does not bar the suit. The next contention is that the claim is barrel by limitation being a claim to set aside the auction sale. This contention also is equally untenable. The suit is not to set aside the sale, but to have it declared that the sale being tainted with fraud cannot affect the rights of the plaintiff in respect of the property sold which is her property and not the property of the judgment-debtor, Baldeo Singh. The case of Malkarjun v. Narhari 25 B 337 : 5 C.W.N. I.C. 10 M.L.J. 368 : 2 Bom.L.R. 027 L.A. 216 (P.C). has been referred to on behalf of appellant but that case has, in my opinion, in bearing on the case before me. There the property sold was the property of the original judgment-debtor but a wrong representative had been placed on the record. There was no question of fraud in that case. In the present case inspite of the order which the Court had already passed declaring that the present plaintiff was not the legal representative of Baldeo Singh, the appellant described her as such representative and kept her out of all knowledge of his application and the subsequent proceedings by practising a fraud on her. All these proceedings having been found to be fraudulent were void as against her and could not affect her interest in the property. I dismiss the appeal with costs including fees on the higher scale.


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