C. Venugopal Naidu (died) and Others vs Krishnamurthy and Another

Jagadeesan, J.—The appellant purchased the property from the second respondent herein who is the judgment-debtor on 6.3.80. The first responded decree holder, had obtained the decree against the second respondent in O.S.8501/71. He filed E.P.1458/75 for execution of the said decree. In the E.P. No. 10.12.75 the attachment of the properties under dispute was ordered. Subsequently on 29.6.77 the said E.P. was closed with the direction that the attachment should continue. Later on, the first respondent filed E.P.72/82. In view of the direction to continue the attachment in the order dated 29.6.77, the attachment is deemed to be continued in this E.P. also. The E.P.72/82 was dismissed for default on 23.2.92, without any direction for continuation of the order of attachment, subsequently, the first respondent filed E.P.2032/83 and brought the properties for sale. In this E.P. the appellant has filed the claim petition stating that the appellant had purchased the property on 6.3.80 with notice of the order of attachment and hence he is a bonafide purchaser for value.

The further contention of the appellant is that thought by order dated 29.6.77 the order of attachment was directed to be continued, when E.P.72/82 was dismissed on 23.2.82 there was no direction for the continuation of the attachment. Hence as per Order 21, Rule 57(2) of CPC the attachment shall be deemed to have been ceased. So the properties cannot be brought to sale.

Both the courts below did not accept the contention of the appellant and dismissed the claim petition. The present second appeal has been filed by the appellant, raising the same question.

The learned counsel relied upon the judgments reports in Motilal Madanchand Lodha Vs. Ragho Tanaji Patil and Others, and Maheshwari Khetan Sugar Mills (P.) Ltd. and Others Vs. Ishwari Khetan Sugar Mills and Others, . I am of the view that both the judgments have no application to the facts of the present case. It is true that when the executing court dismissed. E.P.1458/75 on 29.6.77, it ordered the continuation of the attachment. The first respondent filed fresh E.P.72/82. There is no evidence to show that he has filed afresh application for order of attachment in this E.P. So order passed on 29.6.77 directing the attachment to continue was in force till the date of dismissal of E.P.72/82 on 23.2.82. The appellant had purchased the property on 6.3.80, on which date, admittedly, the order of attachment was in force. The appellant cannot be said to be a bonafide purchaser, having purchased the property during the period in which the order of attachment was in force. Order 21, Rule 57(2) mentions that if the court omits to give the direction to continue the attachment, the attachment shall be deemed to have cased, which means if no transaction had been taken place, From the date of the order of attachment and the order of dismissal of E.P. the judgment debtor will have the benefit that there was no order of attachment at all. But if any transaction took place during the period wherein the attachment order was in force, then naturally such transactions would be vitiated by the order of attachment. Hence the purchase by the appellant is only subject to the order of attachment because the cessation prescribed under Order 21 Rule 57(2) C.P.C. will not date back to the date of attachment in case if any transaction took place during the period of existence of the order of attachment. Hence the order of the courts below are correct.

In the result, the second appeal is dismissed. However, there will be no order as to costs.