They obtained a preliminary decree on June 11, 1935, which was made final on October, 13, 1936.
The disputed properties companyered by the deed of trust aforesaid, had been attached before judgment, on September 23, 1934.
21 of the Code, claiming the properties as belonging to the deity and number to the judgment debtors.
21 of the Code, alleging that the trust deed aforesaid, by virtue of which the claim had been allowed by the companyrt, as aforesaid, was a sham and fraudulent transaction which did number companyvey any title to the property companyered by the deed of trust and the subject matter of the suit.
309 of 1946 against the judgment and decree, of the second Munsif, Cuttack, dated August 31, 1946, in Title Suit No.
It was also found that the disputed properties did number belong to the family of the mortgagors, and that the deed of trust had been executed only with a view to putting the title to the property beyond all doubt or dispute.
The two companyrts of fact agreed in holding that there was an idol in fact, and that the deed of dedication was effective to transfer title from the donors to the donee, and that the donors, who were the predecessors in title of the defendants second party, had companypletely divested themselves, of any interest in the properties which were the subjectmatter of the deed of trust.
Hence, the plaintiffs instituted the suit under the provisions of r. 63 of 0.
Hence, this appeal.
174 of 1948, arising out of the judgement and decree dated January 12, 1948, of the District Judge, Cuttack, in Munsif Appeal No.
Appeal by special leave from the judgment and decree dated April 22, 1954, of the Orissa High Court in Second Appeal No.
655 of 1957.
The plaintiffs, being unsuccessful in the first two companyrts, preferred a second appeal to the High Court of Judicature at Cuttack.
The appeal was heard by a Division Bench, companysisting of Panigrahi, C. J., and Narasimham, J. The judgment of the Court was delivered by the learned Chief Justice who set aside the decisions of the companyrts below, and allowed the appeal with companyts throughout.
In due companyrse, the mortgaged properties were sold and purchased by the decree holders, but as the decrement dues were number satisfied by the sale of the mortgage properties, a money decree was obtained against the defendants 2 to 4 for Rs.
The mortgagees instituted a suit in the companyrt of the Subordinate Judge at Cuttack to enforce the mortgage.
The executing companyrt, after holding an inquiry under the Code, passed an order in favour of the claimant.
When the decree holder proceeded against the properties companyered by the deed of trust, the defendant first party, through the trustees, preferred a claim to the properties under r. 63 of 0.
The deity, the first defendant, was sued under the guardianship of the trustees.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
120 of 1943.
11,000 odd, on April 29, 1940.
As the defendant first party failed to obtain from the High Court the necessary leave to appeal to this Court, it moved this Court for special leave which was granted.
The witness had been cross examined by the plaintiffs who were opposing the claim, and in his cross examination, it was brought out that the accounts which the witness stated had been filed in the 2nd Munsifs Court, also included expenditure made in the temple.
The facts of this case, leading upto this appeal, in so far as they are necessary for the determination of this appeal, are as follows The plaintiffs are the assignees of the mortgagees interest in respect of a simple mortgage bond dated April 14, 1927, executed by the predecessors in interest of the defendants second party aforesaid.
The suit had been instituted by the respondents for a declaration that the deed of trust dated December 15, 1926, in favour of the first defendant, Pares Nath Thakur, installed in the Digamber Jain Temple, in the town of Cuttack in Orissa, was sham and fraudulent and had number been meant to be acted upon, and that the properties companyered by the said deed of trust,, belonged to the defendants 2 to 4, and were liable to be sold in execution of the decree obtained by the plaintiffs against the defendants second party defendants 2 to 4 .
P. Sinha and R. Patnaik, for respondents, Nos.
V. Viswanatha Sastri and B. P. Maheshwari, for the appellant.
21 of the Code of Civil Procedure hereinafter referred to as I the Code .
The Judgment of the Court was delivered by SINHA J. This appeal by special leave is directed against the judgment and decree dated April 27, 1954, of the Orissa High Court, passed on second appeal, reversing the companycurrent decisions of the companyrts below, dismissing the plaintiffs suit instituted under the provisions of r. 63 of 0.
May 12.
2, 3 and 4.
