9911796707
TMI Blog1949 (11) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... of Civil Procedure. It is settled law that in view of that section a High Court has no power in second appeal to question findings of fact reached by the first appellate Court which there was evidence to support. 3. The property in suit originally belonged to one Bihan Paswan, who, on February, 24, 1908, by a sale deed, ex. A, sold the property to Mukh Lal. The deed provided that part of the purchase money should be applied in remitting a mortgage held by Mangni Ram. By deed dated July 13, 1921, ex. A (2), Mukh Lai purported to sell the property to the wife and two minor sons of Mangni Ram. In the year 1928 one Santi Nayak, father of the appellant, obtained a money decree against Mangni Ram and Mukh Lai on a promissory note signed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion sale and the decree may be set aside und the appeal may be decreed. The parties will bear their own costs of the appeal. In attestation hereof the signatures of the respondents and the lawyer's of the appellants and the respondents are affixed herein below. The petition of Mukhlal Prasad appellant and Shanti Nayak respondent,' dated 29-3-30. 6. The learned Judge who heard the petition was not satisfied with the bona fides of the compromise and made an order in the following terms : The pleader B.B.K. Biswas was permitted to sign the vakalatnama to-day and he signed it. I am not inclined to decree this appeal in terms of the compromise. I cannot set aside an ex parte decree in an old suit simply because the parties want me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of fact. First that the sale to Mukh Lal in 1908 was a became transaction, Mukh Lai being benamidar for the joint family comprising himself and Mangni Ram; secondly, that the conveyance of July 13, 1921, was also benami, being no more than a transfer from one benamidar to three other benamidars; thirdly, that in 1928 when the Court sale took place the property in suit belonged to the family of Mangni Ram, who was the karta of the family, from which it followed that the property in suit was rightly seized in execution; fourthly, that on the application to record the compromise in 1930, there was an agreement between Mukh Lal and Santi Nayak that Mangni Ram would pay the decree money and the sale would be set aside, but there was actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the deed was discussed at length in the judgment of the Subordinate Judge. Their Lordships are satisfied that there was ample evidence to support the findings of the Subordinate Judge that the transactions of 1908 and 1921 were benami, and that these findings cannot be challenged in second appeal. 12. Mr. Justice Manohar Lall then held that the decretal amount had been paid. In reaching that conclusion he accepted the evidence of Moti Singh, whom the lower Courts held to be an unreliable witness. It is plain that in differing from the view taken by the lower appellate Court upon appreciation of oral evidence Mr. Justice Manohar Lall exceeded his powers under Section 100 of the Civil Procedure Code. Having held that the whole decretal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the failure of his father to apply for possession until the very last moment, a matter which naturally weighed heavily with Mr. Justice Manohar Lall; but such suspicion does not amount to proof that the decretal money was paid. There may have been other grounds for the delay, and it is as difficult to understand, if the money was paid, why the judgment debtors did not get the sale set aside, as it is to understand why, if the sale was valid, the judgment creditor did not at once apply for possession. 14. In their Lordships' view there was no ground upon which the High Court could reject the findings of fact arrived at by the first appellate Court, and on those findings the plaintiff's suit must succeed. 15. One other point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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