B. Chinnasamy Naidu vs C.S. Mani

The unsuccessful plaintiff before the Courts below has filed this Second Appeal.

Originally the suit property belonged to one Mokshammal. She sold 1.47 acres of land under Ex.A3 to one Chandbasha under a sale deed

dated 18.12.1980 and another 75 cents to one Chandra under Ex.A4 sale deed dated 17.2.78. The said Chandra sold the property purchased

under Ex.A4 to Kiliammal under Ex.A5 sale deed dated 9.4.81. The plaintiff purchased the properties from Chandbasha under Ex.A1 sale deed

dated 27.1.82, and from Kiliammal under Ex.A2 sale deed dated 6.3.82, on the basis of the abovesaid sale deeds, the plaintiff claims rights in the

suit property.

The defendant filed a suit in O.S. No. 29 of 19 71 for recovery of money from Mokshammal and obtained a decree against her on 28.2.72.

Pursuant to the decree, he filed E.P. No. 466 of 1974 and obtained an order of attachment with respect to the abovesaid properties on 29.12.74.

Subsequently, pursuant to the enactment of The Debt Relief Act, the Execution Petition was closed on 15.2.75. According to the plaintiff, the

Court has directed the order of attachment to be continued for a period of six months. According to the defendant, no such period had been

mentioned. After moratorium period came to an end, the defendant filed another Execution Petition in E.P. No. 276 of 1980. Admittedly, no fresh

application was filed for attachment. The abovesaid properties were brought for sale in the said Execution Petition, and the defendant himself

purchased the properties in court auction sale held on 6.6.84, which was confirmed on 30.7.85.

It is also relevant to mention here that the said Mokshammal filed E.A. No. 1193 of 1985 u/s 47 of the CPC to set aside the sale in E.P. No.

276 of 1980. Though originally the said Application was allowed, in the Appeal filed by the defendant in C.M.A. No. 7 of 86, the Sub Court,

Tiruvallur reversed the order on 15.3.93. Aggrieved against the same the said Mokshammal filed Revision in C.R.P. No. 2297 of 1993. The

learned Judge confirmed the order of the lower court and dismissed the Revision. So, the fact remains that the said Mokshammal could not

succeed in her attempt to set aside the sale in favour of the defendant by filing an Application under Sec.47 of C.P.C.

Even the dispute regarding the scope of the order dated 15.2.75 in E.P.466 of 1974 with respect to the period for which the order of

attachment was extended, Jagadeesan, J., in C.R.P. No. 2864 of 1995, filed at the instance of the defendant, directed to issue notice to the parties

and pass orders with respect to the clarification regarding the corrections made by the lower court in the suit register in respect of the order dated

15.2.75, in E.P. No. 466 of 1974. After such remand, I am able to see the lower court found that the order of attachment had been extended only

for a period of six months, and not indefinitely as alleged by the defendant.

On the basis of these facts, the defendant contested the suit in O.S.458 of 1985,on the file of the District Munsif Court, Thiruvallur filed by the

appellant claiming title in the suit property contending inter alia that the plaintiff cannot claim any right in the suit property on the basis of the sale

deed executed in his favour.

The trial Court accepting the case of the defendant dismissed the suit. So the plaintiff filed appeal in A.S. No. 2 of 1998 on the file of the Sub

Court, Tiruvallur. The learned Sub Judge also confirmed the judgment and decree of the trial court and dismissed the Appeal. Hence this Second

Appeal.

The substantial questions of law that were formulated in this Second Appeal are as follows:-

(1)Whether the courts below are correct in holding that the prior order of attachment would continue even beyond the period of six months (i.e..

after 15.8.1975) when the executing court had specifically ordered while closing the E.P. that the attachment to continue only for a period of six

months, especially when it is empowered to do so under the provisions of Order 21, Rule 57(1) of Civil Procedure Code?

(2)Had not the courts below committed an error under law in holding that Order 21, Rule 57 could be made applicable only to cases where the

execution petition is dismissed for default on the part of the decree holder and not to other cases?

(3)Had not the courts committed an error under law, having agreed that the executing court had allowed the prior attachment order to continue

only for six months, in ignoring the same while deciding the issue raised by the parties based on the same?

Learned counsel appearing for the appellant submitted that the sale deed by Mokshammal/judgment debtor under Exs.A3 and A4 were

executed when there was no order of attachment at the instance of the defendant, and the order of attachment had ended on 15.8.78 itself. The

defendant brought those properties for court auction sale and purchased the same though the said Mokshammal had no title to the suit property on

the said date. Referring to provisions of Order 21 Rule 57(1) of C.P.C., the learned counsel submitted that the order of attachment was restricted

only for the said period and so the sale deed executed in favour of the plaintiffs vendors after that period cannot be ignored by the defendant.

Referring to the order dated 15.2.75 in E.P. No. 466 of 1974, learned counsel also submitted that the original order of attachment passed by the

court extending the attachment was only for a period of six months, and in the suit register, by mistake, it was mentioned as it is for unrestricted

period, and the same was subsequently rectified and so the defendant cannot take advantage of the said mistake committed by the clerical staff. He

has also submitted that after the remand by this Court, as stated above, the lower court has found that the order of attachment was extended only

for a period six months and so it has to be taken that the original order itself was only for a period of six months. On that basis the learned counsel

further submitted that the courts below have committed an error in dismissing the suit on the basis that the sale deed executed in favour of the

plaintiff''s vendors cannot be sustained.

Learned counsel appearing for the respondent/defendant submitted that originally the court did not restrict the period of attachment in the order

dated 15.2.75, and the subsequent Execution Petition in E.P. No. 276 of 1980 is the continuation of the earlier Execution Petition and so no fresh

application for attachment need be filed, as the subsequent E.P. should be taken as a continuation of the earlier Execution Petition. He also

submitted that the court auction sale in favour of the defendant is only voidable and not void and the said Mokshammal filed the Application u/s 47

C.P.C. which had been rejected and so the appellant/plaintiff cannot now re-agitate the matter regarding the validity of the court auction sale.

On the basis of the facts set out earlier, and the arguments submitted by the learned counsel, we have to decide whether the plaintiff can claim

any title in the suit properties under Exs.A1 dated 27.1.82 and A2 dated 6.3.92 respectively.

It is not in dispute that the defendant filed the suit in O.S. No. 29 of 1971 against the original owner of the property, Mokshammal for

recovery of money and the said suit was decreed on 28.2.72. The defendant by filing the Execution Petition in E.P. No. 466 of 1974 obtained an

order of attachment of the suit property on 29.12.74. Pursuant to the introduction of the Debt Relief Act and the enforcement of moratorium, the

said Execution Petition was closed on 15.2.75. While closing the said Execution Petition, the lower court directed the attachment to be continued

for 6 months. If it is so, the attachment came to an end on 14.8.75. Subsequently, another Execution Petition was filed in E.P. No. 276 of 1980

and admittedly no fresh attachment was sought for. The suit property and other properties were brought to sale and the defendant himself

purchased the same in the auction held on 6.6.84, which had been confirmed on 30.6.85.

Before going into the main issue, the controversy regarding the scope of the order regarding attachment in E.P. No. 466 of 1974 while closing

the said Execution Petition on 15.2.75 has to be decided.

According to the plaintiff, the lower court has extended the attachment only for a period of 6 months. According to the defendant, the

attachment was extended without restricting any time-limit. The defendant has come forward with such a plea on the basis of the certified copy

obtained by him regarding the order dated 15.2.75. The plaintiff has come forward with the plea that though the Presiding Officer while passing the

order dated 15.2.75 extended the attachment only for a period of 6 months, the clerk by mistake has not properly made the entry and so the entry

had been amended in accordance with the original order. Learned counsel appearing for the appellant submitted that the respondent/defendant

cannot take advantage of the mistake committed by the clerk while making the entry in the suit register. The said dispute came to this Court by way

of Revision in C.R.P. No. 2864 of 1995, and the learned Judge in the order dated 22.12.1995, directed the lower court to give an opportunity to

the parties and decide about the correctness of the entry made in the suit register with respect to the order dated 15.2.75 passed in E.P. No. 466

of 1974. It is not in dispute that after remand the lower court had found that the said entry was a mistake and the original order passed by the

Presiding Officer on 15.2.75 was extended only for a period of 6 months, and that order has become final.

So, now we have to proceed with the case that the executing court while closing the E.P. No. 466 of 1974 on 15.2.75, extended the

attachment only for a period of 6 months, and thereby the said attachment came to an end on 14.8.75.

Admittedly, after the closing of E.P. No. 466 of 1974 no order of attachment was in force and the defendant did not take any steps to revive

the said attachment, though a fresh application in E.P. No. 276 of 1980 was filed. So, from the facts set out above, it is clear that the judgment-

debtor Mokshammal transferred her title in the suit property under the sale deeds Exs.A3 and A4 dated 18.12.80 and 17.2.78, and from the

purchasers of the said properties, the plaintiff derived title by getting sale deeds on 27.1.82 and 6.3.82 under Exs.A1 and A2. The defendant

purchased the suit property in the court auction sale only on 6.6.84. So, on the date of the sale of the suit property in court auction, the judgment-

debtor, Mokshammal did not have any right or title in the suit property and the same was transferred to the plaintiff.

It is well settled that sale of immovable property without previous attachment under Order 21, Rule 57 of C.P.C. is not null and void and that

omission to attach before sale is only an irregularity which renders the sale liable to be set aside if substantial injury is proved. So it cannot be said

that a subsisting attachment is an essential condition of a valid judicial sale in the sense that without it the sale would be a nullity. The abovesaid

view of mine is supported by the decisions in Swaminatha v. Krishnaswami, AIR 1947 Mad. 213 and in The Official Receiver Vs. Kadir Meera

Hussain and Others, . So, the plaintiff cannot question the court auction sale only on the ground that there was no fresh attachment after the

attachment effected in the earlier Execution Petition ceased to exist.

But, in the present case, on the date of the court auction sale, the judgment-debtor did not have any right in the said properties. So, the

question that has to be answered is, can the defendant claim any right in the said properties on the basis of the purchase in court auction sale held

on 6.6.84.

It is no doubt true even with reference to execution of money decree, if there is any sale to the third party of a property by judgment-debtor

during the currency of attachment, the said third-party purchaser cannot claim any right in preference to the right of the purchaser in the court

auction, and he is bound by the decision of the executing court, though not a party to it. The Division Bench of this Court in the decision in

Venkatachalapathi v. Venkatappayya, A.I.R 1932 Mad 86, had an occasion to deal with the said issue while disposing of the correctness of the

order passed by the lower court in the application filed u/s 47 Civil P.C., and has held as follows:-

The present is not a case where the proceedings pending before the Court is only an execution application to attach property. Further proceedings

by way of actual attachment had taken place, and the proceedings by way of attachment of the properties in dispute took place in a Court of

competent jurisdiction; it was when those proceedings were pending that the present plaintiffs purchased those properties from the judgment-

debtor; prima faice they must be taken to have purchased it subject to the result of those proceedings. The principle of the doctrine of lis pendens

would apply to such a case. If for any reason the proceedings that were relating to the properties in question prior to the plaintiff''s purchase should

prove abortive and infructuous, and the decree-holder had to take entirely fresh execution proceedings after the plaintiffs purchase, then there

would be force in the respondents'' contention that such fresh execution proceedings would not be binding on them unless they were made parties

to the same. On the other hand, it is not open to a party to a proceeding to nullify the effect of proceedings already properly taken with reference

to that property by transferring the same to strangers. As already remarked it does not really matter whether the actual decisions of the Courts as

to the effect of the past proceedings is given only after the plaintiffs purchase of the adjudication is really with reference to matters that happened

before such purchase and regarding the effect of the legal proceedings that were prior to the same. To safeguard the purchasers'' rights, the

purchasers should in such circumstances get themselves impleaded as parties"".

20.The same principle has been laid down by the learned Judge in the decision in PL. CT. PL. Palaniappa Chettiar Vs. A. RM. A. L. A. Muthu

Veerappa Chettiar and Another, , in a case where after an execution petition filed by a decree-holder against the judgment-debtor was dismissed

with the endorsement ""petition dismissed. Attachment to continue for four months"", and before the expiry of the aforesaid four months period, the

attached properties were sold in execution of another decree obtained by a third party against the same judgment-debtor and the proceeds of the

sale were brought into court. While dealing with the said fact, the learned Judge held that the decree-holder in the said case would be entitled to a

share in the proceeds realised by the court in another execution petition.

21.Learned counsel for the respondent relied on the decision of the Apex Court in Nancy John Lyndon Vs. Prabhati Lal Chowdhury and Others,

to support his submission that the subsequent restoration of execution application dismissed for default would amount to revival of attachment also,

and if there is any sale made between the period from the date of dismissal of the execution application for default and the date of restoration, it

would be void. In the said decision, the Hon''ble Judges have dealt with the case where attachment was levied on 3.8.1970 in the execution

application to execute the money decree and the execution petition came to be dismissed for default on 9.5.1972, and in the meanwhile the

judgment-debtor sold a portion of the attached property on 14.9.70, and subsequently on 16.9.1975, the said application was restored, and the

said properties were again attached on 16th September, 1975. On the basis of the said facts, the Hon''ble Judges have held as follows:-

In the present case both, the sale by the judgment-debtor to Bharat Shamshere Jung Bahadur Rana and the sale by Bharat Shamshere Jung

Bahadur Rana to the respondent, were effected during he subsistence of the attachment and before the Title Execution Case was dismissed for

default. In our view, even if a doubt were to be entertained as to whether an order for restoration of the suit or execution application would have

the effect of restoring the attachment retrospectively so as to affect alienation made during the period between dismissal of the suit or execution

application and the order directing the restoration it is clear that an order of restoration would certainly restore or revive the attachment for the

period during which it was in subsistence, namely, prior to the dismissal of the suit or execution application.

But the abovesaid decision decided on the abovesaid facts is not applicable to the facts of the present case.

In the present case, admittedly, there was no attachment when the title with respect to the suit property was passed on to the plaintiff. By filing

subsequent execution petition in E.P. No. 276 of 1980, the earlier attachment cannot be said to have been revived and no fresh attachment was

ordered, though the earlier execution petition was dismissed for the purpose of statistics.

In the decision in Kuppuswami and Another Vs. Rangai Goundan, , while rejecting the conclusion of the District Judge holding that a fresh

attachment on the property was necessary when the earlier execution petition was closed for statistical purpose with a direction that the attachment

would subsist for one year, and subsequently the said execution petition was revived, the attachment must be deemed to have been revived, the

learned Judge has held therein as follows:-

I am not disposed to agree with this reasoning. Even where an execution application is dismissed by the executing Court under Order XXI, Rule

57, the Court is bound to make a suitable order with regard to the subsistence of the attachment or otherwise. Whether such a dismissal of the

execution application is for statistical purposes or not, the order of the court in so far as the attachment is concerned cannot be linked up with the

scope of the order on the execution application. This order distinctly gives a definite life to the subsistence of the attachment and thereafter the

attachment ceases. I can see no provision of law whereunder an attachment which was brought to a termination by an order of Court can be

revived"".

It is settled principle regarding the execution proceedings that the attachment of property does not create either a charge or lien in favour of the

attaching decree-holder, and it does not create any interest in the property. The purchase of property from the judgment-debtor during the

currency of attachment with the knowledge of the proceedings is subject to the result of the said proceedings. The doctrine of lis pendens applies in

such circumstances. But, in the present case, as stated already, the Execution Petition filed in E.P. No. 466 of 1974 was closed on 15.2.75. Even

applying the decision cited above, it can be said that the said Execution Petition could be taken as in existence only till the attachment was in force

and that attachment made had come to an end on 15.8.75. So the respondent-decree holder cannot come forward with the plea that the sale of

the property by the judgment-debtor after that period (15.8.75) is affected by the principle of lis pendens and so the subsequent court auction sale

would be binding on the plaintiff. This view of mine is supported by the decision of the Division Bench of this Court in Venkatachalapathi Rao v.

Venkatappayya, AIR 1932 Mad. 86 (cited supra), holding as follows:-

In our opinion, when proceedings by way of attachment of immovable property in execution of a money decree have been taken by the executing

Court, in an execution application filed by the decree-holder, any question that might be raised whether the proceedings taken by the Court did

amount to a valid attachment or not is one that falls to be decided by the Court in the execution department; any stranger purchasing the property

from the judgment-debtor in those circumstances would only take the property subject to the Court''s decision as to the effect of the proceedings

actually taken before his purchase. Such purchaser would be bound by the Court''s decision of the question in the execution department though he

was not a party to the same. To hold otherwise would be to impair the rights of the decree-holder and to enable the judgment-debtor to set at

naught decisions of courts competent to adjudicate on the rights of parties, and give the go-by to the principle of law giving finality to decisions of

Courts in matters properly before them.

In the abovesaid decision it is also held that

In our opinion, when proceedings by way of attachment of immovable property in execution of a money decree have been taken by the executing

Court in an execution application filed by the decree-holder, any question that might be raised whether the proceedings taken by the Court did

amount to a valid attachment or not is one that falls to be decided by the Court in the execution department; any stranger purchasing the property

from the judgment-debtor in those circumstances would only take the property subject to the Court''s decision as to the effect of the proceedings

actually taken before his purchase. Such purchaser would be bound by the Court''s decision of the question in the execution department though he

was not a party to the same. To hold otherwise would be to impair the rights of the decree-holder and to enable the judgment-debtor to set at

naught decisions of Courts competent to adjudicate on the rights of parties, and give the go-by to the principle of law giving finality to decisions of

Courts in matters properly before them.

The present is not a case where the proceeding pending before the court is only an execution application to attach property. Further proceedings

by way of actual attachment of the properties in dispute took place in a Court of competent jurisdiction; it was when those proceedings were

pending that the present plaintiffs purchased those properties from the judgment-debtor; prima faice they must be taken to have purchased them

subject to the result of those proceedings. The principle of the doctrine of lis pendens would apply to such a case"".

While following the said decision, and considering the above conclusion, the Division Bench of this Court in Dunna Venkata Rao Vs. Sree

Rajah Saheb Meharban I Dostan Sree Rajah Rao Venkatakumaramahipathi Surya Rao Bahadur Garu and Another, , held as follows:-

The last sentence in the above quotation makes it quite clear that if there were to be a fresh execution proceeding the adjudication in the earlier

execution proceedings would not bind the purchaser unless he was made a party to it. It is unnecessary for us to consider whether even in the same

execution proceedings if an order was passed against the judgment-debtor after he had parted with his interests in the property which was

attached, the purchaser would be bound by such an order. It is enough for the purpose of the decision of this case to point out that in the present

case the execution proceedings in which the decision in Exs.D-1 and D-3 was given were initiated long after the plaintiff obtained his mortgage.

The plaintiff therefore would not be bound by the order in Exs.D-1 and D-2 and the principle of the decision does not apply"".

So, in view of the said principles laid down in the abovesaid decisions, the lower appellate court is not correct in holding that in view of the

subsequent execution petition and in view of the extension of attachment in the earlier Execution Petition, the plaintiff cannot claim any right on the

basis of sale deeds under Exs.Al and A2 as the sale by the judgment-debtor cannot be held as they were affected by lis pendens.

Learned counsel appearing for the respondent has further submitted that the court auction sale in favour of the defendant may be voidable and

not void, and the petition filed by the judgment-debtor under Sec.47 C.P.C. was dismissed, which was confirmed by this Court in C.R.P. No.

2297 of 1993, the judgment of which has been marked as Ex.B6,and so the present suit questioning the right of the defendant cannot be sustained.

He has also submitted that the principles of res judicata will apply to the present case. The said argument was made on the basis of the order of

this Court in C.R.P. No. 2297 of 1993. Even this argument cannot be countenanced.

It is no doubt true that the courts have held that the sale in the court auction without following prescribed procedures is voidable. The said

principle cannot be applied to the facts of the present case. When on the date of court auction sale, the judgment-debtor did not have any title to

the property at all, as she had already parted with the title in favour of the 3rd party, the decisions relied on by the learned counsel in The Official

Receiver Vs. Kadir Meera Hussain and Others, and in Swaminatha v. Krishnaswami, AIR 1947 Mad. 213 cannot have any assistance to the

defendants to sustain his case on the basis of the court auction sale held on 6.6.84.

Relying on the order in C.R.P. No. 2297 of 1993 marked as Ex.B6, the submission of the learned counsel for the respondent is that the

plaintiff cannot sustain the suit under the guise of purchase of the property under Exs.A1 and A2,and indirectly challenge the rights of the defendant

got under the court auction sale held on 6.6.84, which has been negatived by the High Court in the said order at the instance of the judgment-

debtor/Mokshammal. But, unfortunately, the plea regarding the doctrine of res judicata was not raised before the trial court. No issue was also

framed. So, the learned counsel cannot be allowed to raise the same in the Second Appeal. This view of mine is supported by the decision of the

Privy Council in Surayya v. Balagangahdhara Ramakrishna Reddy, 1947 (2) M.L.J. 511 in which it is held as follows:-

In conclusion it was argued by the respondent''s counsel that the question whether the deed of 1941 was a partition deed or not was res judicata

by reason of the decision on this point in the previous suit No. 6 of 1919. The facts relating to that case and the present one (for instance that the

suit of 1919 was ultimately dismissed and the claim was later on compromised) make it difficult to apply to this case the principles of res judicata.

But, apart from that, it is enough, in their Lordships'' opinion, to dispose of this matter to say that there was no issue on this point and the question

of res judicata has to be specially pleaded. The record shows that this question was not argued before the High Court, and before the trial court

the first respondent''s pleader argued exactly the contrary of his present argument, namely, that the decision in the previous suit could not operate

as res judicata. That was obviously because two of the findings in that suit were in favour of the alienees. Their Lordships are therefore unable to

accept this argument"".

The abovesaid decision of the Privy Council has been relied on to lay down the same principle, by the Apex Court in the decision in Manicka

Nadar v. Sellathamal, holding that the plea of res judicata cannot be raised for the-first time in the Second Appeal.

The same view has also been relied on by the Full Bench of Andhra Pradesh High Court in Katragadda China Anjaneyulu and Another Vs.

Kattragadda China Ramayya and Others, , holding as follows:-

...""15. Before us, Sri Kesava Rao once again presented the point based upon Section 11 C.P.C. We are not persuaded that any special

circumstances exist in this case which justify the appellants being permitted to raise that plea at this stage. To invoke the doctrine of res judicata,

the ingredients contemplated by Section 11 C.P.C. should be satisfied. The court has to see whether the elements that constitute res judicata are

present in a given case, which means an investigation into the facts bearing upon the several aspects, contemplated by that section. It is not a pure

question of law which could be debated at any stage prima faice, the present case is excluded from the operation of the principle embodied in

Section 11 C.P.C. Because the Court which tried the former suit is incompetent to take cognizance of the present action. The former suit which

had given rise to the proceedings in execution of its decree was instituted in the District munsif''s Court as the claim involved was within its

pecuniary jurisdiction. The present suit which is valued at Rs. 28,000 could not have been taken cognizance of by the District Munsif. Further it is

difficult to posit that the requirements as to parties or their representatives-in-interest or as to the issues involved in both the suits are fulfilled. It

cannot also be ignored that neither the pleadings nor the judgment in that matter was exhibited in this case. That being the real position, the

appellants cannot be permitted to urge that objection now for the first time"".

The Orissa High Court also has taken the similar view in the decision in Krishna Chandra Naik and Others Vs. Nilakantha Mohanty and

Others, , holding as follows:-

So far as the point raised with regard to res judicata is concerned, the principle is rather well settled by authoritative decisions of the Apex

Court as well as this Court. It is well known that res judicata is a mixed question of fact and law. It has to be specifically pleaded and parties

relying on the principle of res judicata should place before the court all materials particulars which would be sufficient to give a finding whether the

particular case is barred by the principle of res judicata. In the case of Gurrala Jaggarao and Others Vs. Gopisetti Bhaaskara Ramchandra Rao

Dora, , a Division Bench of this Court held that a plea of res judicata which was never raised before the Court nor the pleadings of the parties

were before the Court, such a new plea could not be allowed to be raised at the appellate stage when further materials may be necessary for the

purpose of determination of the issue. In the case of Sahadeb Nayak Vs. Satyabadi Nayak and Others, , this Court laid down that a plea of res

judicata has to be specifically pleaded and proved and such a plea would not be available for the first time in second appeal"".

In view of the said decisions, the contention of the learned counsel for the respondent in this regard cannot be accepted.

From the above discussions, it is clear that the courts below have not properly appreciated the settled principles of law to reject the case of the

plaintiff and so the judgments and decrees of the courts below are set aside, and consequently the plaintiff is entitled for the decree as prayed for.

Accordingly, this Second Appeal is allowed. No costs. C.M.P. No. 16128 of 1998 is closed.