Kamesar Singh v. Hanuman Prasad — 1966 DIGILAW 159 (PAT)

Judgment S.C.Misra, J. 1. This is an application by two persons, Kamesar Singh and Srimati Madhu Rani, who objected to the sale of certain properties in execution case No. 4 of 1961 pending in the court of the first Additional Subordinate Judge, Gaya. Applicant No. 1 prayed for release of the property mentioned in schedule 1 of the execution petition and applicant No. 2 prayed for release of the property mentioned in schedule 2 of it. The decree-holders proceeded with the execution in respect of the decree for costs. The properties in schedules 1 and 2 were duly attached and were actually auction sold on the 5th September, 1962, the purchasers being the decree-holders. The case of the petitioners, however, was that they obtained title to these properties under three registered sale deeds, two of them being dated the 2nd February, 1961. for Rs. 2000 each and the third is dated the 7th February, 1961 They claimed to be in peaceful possession of the property by virtue of the sale deeds in their favour as owners Hence, they prayed that the properties attached in the execution of the decree should be released from attachment. The decree-holders filed a rejoinder alleging that the Judgment-debtors were not in possession of the properties attached and sold, and the sale deeds were sham, collusive and farzi transactions. 2. The learned Additional Subordinate Judge, on a consideration of the evidence led by the parties, came to the conclusion that the objectors had interest in the properties sought to be attached and that the properties were not bound under the decree; and, as such, they should be released from attachment. Coming to this finding, however, the learned Additional Subordinate Judge did not allow the application of the petitioners but held that they were not entitled to an order of release as auction-sale in the execution case was already held on the 5th September, 1962, so that on the 25th May, 1963, when the application was being disposed of by the learned Additional Subordinate Judge, he had no jurisdiction to pass an order in favour of the objectors in view of a decision of this Court reported in 1962 BLJR 291 : ( AIR 1962 Pat 403 ), Janki Mohan V/s. Dr. S. Samaddar. Hence, this petition to this Court. 3. Mr. S. Samaddar. Hence, this petition to this Court. 3. Mr. Gauri Shankar Prasad, appearing in support of this application has contended that the learned Additional Subordinate Judge having come to the conclusion that his clients had interest of their own in the properties under attachment and that he would not enter into the question of benami nature of the transaction in a proceeding under Order 21. Rule 58, Code of Civil Procedure, should have ordered the properties to be released. The only obstacle in the way of an order being passed in favour of the petitioners was the pronouncement of the Judgment of this Court in (1962 B.L.J.R. 291) : AIR 1962 Pat. 403 . Learned counsel contended that the learned Additional Subordinate Judge was in error in taking that view because the facts of that case were distinguishable. In that case, the sale in favour of the opposite party was held prior to the application filed by the petitioner as in that case the sale of the property in question took place on the 11th November, 1957, whereas the application for release from attachment that the petitioner filed in court was made on the 26th November, 1957, clearly a fortnight after the date of sale, although the sale was not confirmed on that date The objection under Order 21, Rule 58 was accordingly dismissed and the order had become final. Learned counsel has contended that the other facts of the case are not relevant to be gone into. It is no doubt true that an observation was made with reference to the decisions in the cases of Sasthi Charan Bis-was Banik V/s. Gopal Chandra Shah. 41 Cal WN 845 (AIR 1937 Cal 390) and Mt. Puhupder Kuar V/s. Ramcharitar Barhi, AIR 1924 Pat 76 that where the sale had actually taken place, the executing court had no jurisdiction to entertain the claim under Order 21, Rule 58 of the Code although the application might be made prior to the sale and although the sale might not be confirmed. It is true that a view different from this was adopted by the Madras High Court in the case of C. Jagannadham v B Pvdayva ILR 55 Mad 251 : (AIR 1931 Mad 7821 referred to by the learned Judges in Sasthi Charan Biswas Baniks case, 41 Cal WN 845: (AIR 1937 Cal. It is true that a view different from this was adopted by the Madras High Court in the case of C. Jagannadham v B Pvdayva ILR 55 Mad 251 : (AIR 1931 Mad 7821 referred to by the learned Judges in Sasthi Charan Biswas Baniks case, 41 Cal WN 845: (AIR 1937 Cal. 390) but this is a mere obiter dictum inasmuch as the facts in that case are clearly distinguishable and the question arose as to the propriety of an application under Order 21. Rule 58 of the Code as also an application under Sec.151 of the Code. The contention of learned counsel appears to be correct; and Mr. Lakshman Saran Sinha fairly conceded that he does not rely upon this decision in support of his opposition to the prayer in the petition. 4. Mr. Lakshman Saran Sinha, however, has drawn my attention to the finding contained in the judgment itself which stands thus: "In my opinion, there is nothing on record to show that the applicants have not acquired interest in the properties described in schedule No. 1 of the application and that their interest is bound under the decree. Hence, I am clearly of the view that the claimants have proved their interest in the property in question which has not been bound under the decree and that, therefore, the properties in question were fit to be released " Mr. Sinhas contention is that the learned Additional Subordinate Judge seems to think that he would not enter into the benami character of the documents relied upon by the objectors because such a matter cannot be gone into in a proceeding under Order 21, Rule 58 on the authority of the case in Ram Kishun Singh V/s. Damodhar Proshad, AIR 1924 Pat 506 and after saying that he has held that there was nothing to show that the applicants had not acquired any interest in the properties. It is noteable that this finding is given although the learned Additional Subordinate Judge in the preceding sentence of this very paragraph has referred to the evidence of the applicants witnesses who came to depose that the applicants were in possession on their own account of the lands claimed by them- If the learned Additional Subordinate Judge thought that this evidence was fit to be accepted he should have said so in clear terms and should have expressed more explicitly by saving further that the objectors were in possession of the lands claimed by them on their own account. His argument is that in a proceeding like this, the question of title which appears to be the substance of the finding of the court below is not material. Mr. Gauri Shankar Prasad however, contends that since this finding stands, after the court has referred to the evidence of A. Ws 1, 2 and 3, it must follow that what he wanted to conclude was that he accepted the evidence of the applicants witnesses and he should have accepted their statement in regard to the objectors possession over the lands of which they claimed to be in possession on their own account. I am unable to accede to this contention on behalf of the petitioners by learned counsel. To my mind, an interpretation put on it by learned counsel for the opposite party seems to be correct, and obviously, although the learned Additional Subordinate Judge referred to the evidence of A. W.s 1, 2 and 3 he did not think it necessary to pronounce upon the correctness of their statement in so far as they refer to the possession of the petitioners. That being the position, it must be held that the finding is insufficient basically; and in that view, the case must be remanded to the court below for recording a definite finding on evidence as to whether the objectors case was reliable to the extent that they not only purchased the lands claimed by them under the sale deed, but further they also came into possession on their own account. 5. Mr. 5. Mr. Sinha has further urged that although he has no objection to the case being remanded in so far as it emanates from the nature of the finding, his objection is that it has been held by this Court in the case of Ravindra Nath Mehta V/s. Ram Bahadur Thakur and Co., C.R. No. 1279 of 1965, decided by Mahapatra and A. B. N. Sinha, JJ. on the 3rd October, 1966 (Pat) that if a claim-application has been filed before the property is advertised for sale, the court ordering sale may in its discretion stay the sale or pass necessary order, but where the application is filed after the advertisement, the court has no jurisdiction to pass any order in the claim-application, which automatically will become infructuous. I have looked into the judgment of the learned Judges: and it appears that this contention of Mr. Sinha is not borne out by the decision. Mr. Sinha, after having gone through the judgment. states that he was under a misconception and the contention that he has advanced is not supported by this decision. The Judgment lays down that even where an application is filed by a claimant after the property has been advertised for sale, it is open to the court to stay the delivery of possession pending the investigation of the claim. It may be that the court may, in the exercise of its discretion, stay the delivery of possession, but nevertheless this decision postulates that the court has jurisdiction to investigate the claim even after the property has been sold. In view of this pronouncement and the special Patna amendment, the earlier decisions of this court including the one referred to in AIR 1924 Pat 76 (supra) will not govern the position. In view of this pronouncement and the special Patna amendment, the earlier decisions of this court including the one referred to in AIR 1924 Pat 76 (supra) will not govern the position. As a matter of fact, the same conclusion follows with reference to the amendment of Rule 60 of Order 21, made by this court, which lays down that -- "Whereupon the said investigation the court is satisfied that for the reason stated in the claim or objection such property was not, at the date of the decree, or when attached, as the case may be, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession, of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly, or to such an extent as it thinks fit, from the execution proceedings, or from attachment. Where the property has been sold, such order shall have the effect of setting aside the sale; and if it has been purchased by a third party in good faith, the court may make such order for his compensation by the decree-holder or objector, to an extent not exceeding 12 1/2 per cent of the purchase price, as he thinks fit." Thus, the substance of the rule is that where after the result of the investigation of the claim the court comes to the conclusion that the claim is well founded and the applicant is in possession of the property on his own account, then such order shall have the effect of setting aside the sale and if it has been purchased by a third party in good faith, he may be compensated by the decree-holder or objector as the case may be. It follows from this that the view of the Calcutta High Court and the view of this Court in AIR 1924 Pat 76 (supra) holding that after the sale has been held the executing court has no jurisdiction to pass any kind of order in regard to the application under Order 21 Rule 58, is no longer good law. 6 For the foregoing reasons, the application must be allowed and the case must be remanded to the court below for a clear finding as to whether the petitioner-objectors were in possession of the Schedules 1 and 2 lands claimed by them in their own right or not. If the court would come to the conclusion that they were in such possession of the properties on their own account, then the application will have to be allowed. If, on the contrary, the court would come to the conclusion that they were not in possession of the properties on their own right, then the application shall have to be dismissed. In the circumstances of the case, the parties will bear their own costs.