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Liyaqat Husain vs Dr. Lakshmi Datt And Ors.

High Court Of Judicature at Allahabad|26 November, 1942


JUDGMENT Iqbal Ahmad, C.J.
1. This is a defendant's appeal arising out of a suit in which the following relief was prayed for by the plaintiff:
It be declared that the property given below is not liable to sale in execution of decree No. 264 of 1930 in the Court of the Munsif of Fathebabad, Execution Case No. 696 of 1932--Hem Raj v. Ram Prasad,--and the auction gale, dated 21st July 1936 which was confirmed on 21st August 1936 is null and void and without jurisdiction and ineffectual against the plaintiff.
2. The facts that led to the institution of the suit are not in controversy and are as follows. The property in dispute belonged to one Ram Prasad. One Hem Raj had a simple money decree against Ram Prasad and, in execution of that decree, Hem Raj attached the property in dispute in or about the year 1931. During the continuance of the attachment Ram Prasad sold the property in dispute to Lakshmi Datt, plaintiff. After the private sale in favour of Lakshmi Datt, the property in dispute was put to sale in execution of Hem Raj's decree and was purchased by Liyaqat Husain, defendant, on 21st July 1936. A few days after 21st July Lakshmi Datt applied under Section 4, Encumbered Estates Act, and his application was transmitted by the Collector to the civil Court on or about 8th August 1936. By this time the auction-sale in favour of Liyaqat Husain had not been confirmed. Thereafter Lakshmi Datt filed an objection before the Collector, who had held the auction-sale, contending that the auction-sale should not, in the events that had happened, be confirmed. The Collector rejected the objection of Lakshmi Datt and confirmed the sale in favour of Liyaqat Hussain on 21st August 1936. The decision of the Collector rejecting the objection of Lakshmi Datt was eventually upheld by the board of revenue.
3. The suit giving rise to the present appeal was then filed by Lakshmi Datt. The Courts below dismissed Lakshmi Datt's suit mainly on the ground that the purchase made by him was, in view of the provisions of Section 64, Civil P.C., void as against Hem Raj and Liaqat Husain. Lakshmi Datt being aggrieved by the decrees of the Courts below filed a second appeal in this Court and a learned Judge of this Court allowed his appeal and decreed his suit. For the first time in this Court, reliance was placed on Section 7, Encumbered Estates Act, and it was contended on behalf of Lakshmi Datt that as, prior to the confirmation of sale in favour of Liaqat Husain, Lakshmi Datt's application under Section 4 had been transmitted to the civil Court, the auction-sale could not be confirmed in view of the mandatory provisions of Section 7, Encumbered Estates Act. This contention found favour with the learned Judge who, as already stated, decreed Lakshmi Datt's suit. We are wholly unable to agree with the decision of the learned Judge.
4. It is manifest from the facts stated above that the purchase made by Lakshmi Datt was during the continuance of attachment effected in execution of Hem Raj's decree. It follows that the purchase made by Lakshmi Datt was void as against all claims enforce, able under the attachment. The auction purchase made by Liaqat Husain was clearly a claim enforceable under the attachment and as such the purchase made by Lakshmi Datt was void as against Liaqat Husain's auction purchase of 21st July 1936. It follows that as between Hem Raj and Liaqat Husain, on the one hand, and Lakshmi Datt, on the other, the title to the property in dispute cannot be deemed to have passed to Lakshmi Datt by virtue of the purchase made by him. The property cannot therefore be deemed to be the property of Lakshmi Datt and as such Section 7, Encumbered Estates Act, has no application to the case. For the reasons given above we allow this appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate Court with costs in all Courts.
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Liyaqat Husain vs Dr. Lakshmi Datt And Ors.


High Court Of Judicature at Allahabad

26 November, 1942