G. Kannan vs D.F. Samueal and others

Raju, J.—The above Letters Patent Appeal has been filed under Clause 15 of the Letters Patent against the order of the learned single judge, dated 15.12.1989 in C.M.A. No. 6888 of 1989, wherein the learned single judge, while dismissing the appeal filed by the appellant herein has confirmed the order of dismissal passed by the learned III Additional Subordinate Judge, Madurai on 6.7.1989 in O.S.E.A. No. 50 of 1987 in O.S.E.P. No. 32 of 1983 in O.S. No. 486 of 1981, filed by the appellant. The Execution Petition was filed for attachment and sale of property of the judgment debtor for the realisation of the money decree passed in the suit. The properties were ordered to be attached on 15.2.1983., and accordingly they were attached. Proclamation and sale were also ordered. In the meantime pending all further proceedings, the judgment debtor was reported to be dead on 12.10.1984 and direction was given to take steps. The decree holder also filed applications for bringing on record the legal representatives of the judgment debtor as also for reduction of the upset price. All the said applications appear to have been returned for complying with certain defects. Since within the time granted, compliance was not made, the application filed for bringing on record, the legal representatives of the judgment debtor was dismissed, as a consequence of which E.P. No. 32 of 1983 was also dismissed for default, and attachment ordered earlier was raised. The fact remains that subsequently on an application filed viz., E.A. No. 1177 of 1985 by the decree holder, the Execution Petition No. 32 of 1983 was restored to file on 4.2.1986 and E.A. No. 462 of 1985 was allowed by bringing the legal representatives of the judgment debtor on record and in E.A. No. 463 of 1985, Mr. R. Vivekanandan has been appointed as the guardian for the minors proposed respondents and time was granted for filing counter affidavit by the parties impleaded. Thereupon on 1.12.1986, the Court below also appears to have reduced the upset price to Rs. 4 lakhs by its order made in E.A. No. 519 of 1984. Thereupon, on 8.12.1986, the Court was said to have ordered proclamation and sale of the properties on 19.1.87. At that stage, two of the respondents, who were impleaded as party respondents to the Execution Petition have filed Civil Revision Petition No. 102 of 1987 before this Court against the order of the II Additional Subordinate Judge, Madurai made in E.P. No. 32 of 1983 in O.S. No. 486 of 1981, whereunder, there has been a reduction of the upset price. The said Revision Petition came to be disposed of by a learned single judge of this Court on 19.9.1988. In the meantime, after the dismissal of the Execution petition on 7.10.1985, as noticed earlier, for default the claim petition/appellant, who is none other than the brother''s son of the judgment debtor appears to have purchased the said property under three different sale deeds for Rs. 46000/-; Rs. 47000/- and Rs. 48000/- marked in the proceedings in the Claim Petition as Exs. Al to A3 respectively.

The Civil Revision Petition, filed by two of the respondents impleaded in the Execution Petition in C.R.P. No. 102 of 1987, as pointed out earlier, came to be dismissed by this Court on 19.9.1988. While matters stood thus, the purchaser from the respondents to the Execution Application has filed a Claim Petition under Order 21, Rule 58, read with Sec.115 of the Code of Civil Procedure, on 13.1.1987 claiming that he having become the lawful purchaser of the property, the property in question may be released from attachment and sale. The reason assigned in the Claim Petition for such a claim was that the Execution Petition came to be dismissed on 7.8.1985 for default, as a consequence of which the attachment ordered also was raised on that day itself, as visualised under Order 21 , Rule 57, of the Civil Procedure Code, and that only thereafter the properties came to be purchased by the appellant herein under the three sale deeds dated 11.10.1965 from the respondents 3 to 7 in the Claim Petition. The further point sought to be made was that the decree holder has also not applied for fresh attachment of the properties and in spite of the same, the properties were being brought to sale on 19.1.1987. The Claim Petition was enquired into and both parties adduced oral and documentary evidence. On considering the materials on record and also submissions made by the counsel appearing on either side, the learned III Additional Subordinate Judge, Madurai Town, has dismissed the Claim Petition filed by the appellant on the ground that there was restoration of the Execution Petition which was earlier dismissed for default and on the orders passed, restoring the order of attachment, the proceedings must be considered to have been in the same position, as it obtained on the date of dismissal for default and that therefore, the appellant cannot claim to have ultimately derived title to the property. The learned Subordinate Judge also was of the view that the appellant was not the bonafide purchaser of the properties.

The further point put against the appellant was the order passed by the learned single judge of this Court on 19.9.1988 in C.R.P. No. 102 of 1987, which was held to be binding on the appellant too, as the successor in interest of the parties, who filed said revision.

Aggrieved against the dismissal of the claim petition, the appellant pursued the proceedings before this Court in C.M.A. No. 688 of 1989. As noticed earlier, the learned single judge of this Court concurred with the conclusion and findings arrived at by the learned trial judge and dismissed the appeal. Hence, the present Letters Patent Appeal.

Mr. S. Natarajan, learned counsel appearing for the appellant, contended that the trial judge as also the Appellate Judge were in error in dismissing the application in the form of a Claim Petition and that the decisions relied on and preferred to by the learned single judge of this Court to confirm the order of dismissal of the Claim Petition do not really help to support the conclusions arrived at by the learned single judge of this Court. Learned Counsel for the appellant reiterated once again the stand taken before the Courts below as also before the learned single judge that the appellant acquired lawful title to the property, when there was absolutely no impediment for alienation, as a bonafide purchaser for value and that in any event, the appellant''s title cannot be defeated in any manner by the Findings of the Executing Court, with reference to the restoration of the Execution Petition and the orders of attachment made. Reliance has been placed by learned counsel for the appellant upon some of the judicial pronouncement, which have been referred to by the learned single judge as also upon some other decisions, to which a reference will be made by us herein after.

Learned counsel for the respondents/decree holders strenuously contended that the appellant was not a bonafide purchaser for value, that the very recitals in the documents themselves would go to show that the real consideration did not actually follow for the transaction and that there was no proof of the appellant having discharged any of the debts, as undertaken, as part of the consideration for the alienation in his favour and that therefore he is not entitled to any relief in the Claim Petition. Argued the learned counsel for the respondents further that the decisions relied upon and referred to by both the learned trial judge as also the learned First Appellate Judge squarely support the view taken by them concurrently and that no interference is called for in this appeal at the instance of the appellant.

We have carefully considered the submission of learned counsel appearing on either side. In our view, though the learned counsel for the appellant, as noticed earlier, has referred to several decisions, we consider it unnecessary to deal with each and every one of them in this appeal, since many of these judgments have been considered and dealt with in one or the other three judgments, which may be noticed now. The decision in Annapuma v Lakshmana AIR (37) 1950 Madras 740 : 63 L.W. 325 is that of a Division Bench of this Court, in which the earlier decisions of this Court referred to by the learned counsel by the appellant has been adverted to. That was also a case whereunder the Execution Petition came to be dismissed for default, after attachment was ordered. But on appeal, the order of dismissal for default was set aside. The Division Bench of this Court held that the effect of the Appellate Order is to restore the order, attaching the property and that the trial court would have to proceed with the execution application from the stage at which it had interrupted it by dismissing it for default and that the Appellate Order restoring attachment would relate back to the date when the attachment was first made, and would render invalid any alienation in the interim period. In Nancy John Lyndon Vs. Prabhati Lal Chowdhury and Others, , the Apex Court was concerned with the alienation of the properly attached in execution and restoration of an Execution Petition. In dealing with the said question, their Lordships of the Supreme Court have adverted to the decision in Annapurnna Patrani''s case (AIR 1950 Madras 740), Thahwala Veeraswami v Pulim Ramana (AIR 1935 Madras 365) and Patringa Koer v Madhavababd Ram (1911) 14 Cal LJ 476), in addition to two other decisions. The Apex Court, though was dealing with some of the contentions, ultimately chose to decide the case on the main ground that the sale by the judgment debtor to a third party was effected during the subsistence of the attachment and before the Execution Petition came to be dismissed for default, and that on the further assumption that even if a doubt was to be entertained as to whether an order for restoration of the suit or Execution Application dismissed for default would have the affect of restoring the attachment levied in execution retrospectively so as to affect alienations made during the period between dismissal of the suit or Execution Application and the order directing restoration would certainly restore or revive the attachment for the period during which it was in subsistence viz., prior to the dismissal of the suit of Execution Application.

7.A. Mr. S. Natarajan, learned counsel for the appellant, sought to place strong reliance upon the observations of the Supreme Court contained in paragraphs 9 and 11. In our view though certain propositions were posed as live for consideration, their Lordships of the Apex Court deliberately desisted from examining any of these contentions either on the correctness of the Full Bench decision of this Court in Thavvala Veeraswami''s case (AIR 1935 Madras 365) or on the view taken by the Division Bench of the Calcutta High Court in Patringa Koer''s case (1911) 14 Cal LJ 476.

In the light of the above, on the mere formulation by itself of certain propositions by their Lordships of the Apex Court in the said decision, it cannot be said that they have rendered any decision on the same and it would be a futile attempt to contend in such a manner, in spite of the specific observations to the contra that their Lordships of the Supreme Court are not expressing any view on the correctness or otherwise of the points decided in the decisions referred to by them. We are of the view that the learned single judge was right in coming to the conclusion that the sale effected in favour of the appellant on 11.10.1985 is certainly affected by the attachment effected earlier and that was the inevitable result on the restoration of the Execution Petition and all the more so when orders were specifically stated to have been made for such restoration too. The appellant who admittedly had knowledge of the pending Execution proceedings had purchased only litigation and that too knowledge with eyes wide open. The Full Bench decision of this Court in Tavvala Veerasatni''s case (cited supra) and the principles laid down therein would, in our opinion, squarely apply to the facts of the case on hand and in the teeth of the specific stipulations contained in Sec.64 of the Civil Procedure Code, it has to be necessarily held that the sale in question under which title is claimed by the appellant has been made in contravention of the order of the attachment which once held to have been restored, must be considered to have enured for the purpose of tendering the sale in favour of the appellant void. It mattered little as to whether such restoration was pursuant to the order of the Appellate Court or the very Executing Court. The appeal has to fail even on this conclusion of ours and it is unnecessary in our view to go into the other issue based on the res judicata, on account of the earlier decision of this Court in C.R.P. No. 102 of 1987. The relationship of the appellant with the judgment debtor and failure to prove actual passing of any real consideration for the sales in question also would disentitle the appellant to claim to desire any valid title to the property to non-suit the decree holder. For all the reasons stated above, we do not see any justification to differ from the view taken both by the learned trial judge as also the learned single judge of this Court. This Letters Patent Appeal fails and it shall therefore stand dismissed. No costs.