Kasarabada Venkatachalapathi Rao vs Gadiraju Venkatappayya and Another represented by his mother and next friend Manikyamma

Anantakrishna Aiyar, J.—The first defendant in O.S. No. 142 of 1920 on the file of the Additional District Munsif''s Court of Narsapur is

the appellant before us. He was the plaintiff in O.S. No. 38 of 1912 on the file of the Principal District Munsif''s Court, Narsapur, wherein he

obtained a decree for money against M. Venkataramanayya on 30th September, 1913. He applied to execute his decree in O.S. No. 38 of 1912

by attachment and sale of certain immovable property and on the 14th of March, 1914, the District Munsif passed an order for attachment. In the

meantime, M. Venkataramanayya, having filed an appeal against the District Munsif''s decree, obtained an ad interim order staying execution, from

the Appellate Court on 13th March, 1914. The interim stay order was received in the District Munsif''s Court on 16th March, 1914, and before

the amin was informed of the order, the amin reported on the 17th March, 1914, that attachment was carried out on that very date (17th of

March) by affixing a copy of the proclamation on the land. Subsequently ad interim order was vacated on the 15th of April, 1914, as the

judgment-debtor failed to furnish security as required by the Appellate Court. Venkataramanayya filed an application, M.P. No. 1950 of 1914, on

6th October, 1914, u/s 47 of the Code alleging that the attachment made on 17th March, 1914, after the Appellate Court ordered stay of

execution was ultra vires and illegal, and that the application for sale made by the decree-holder on the strength of the said attachment was not

maintainable, and he prayed that ""the Court may cancel the attachment and the sale application made by the decree-holder"". The District Munsif

overruled the contentions of the decree-holder and directed that ""the attachment in question be raised and all further proceedings following thereon

quashed."" On appeal the said order was confirmed by the Subordinate Judge. When the appeal was pending, Venkataramanayya died and his

widow Kameswaramma was brought in as his legal representative by the Appellate Court. The decree-holder in O.S. No. 38 of 1912 preferred a

Civil Miscellaneous Second Appeal to the High Court. There was a reference to the Full Bench in that Civil Miscellaneous Second Appeal. The

Full Bench held:

Where subsequent to an ad interim order for stay of execution ""made by an Appellate Court without notice to the decree-holder, but before its

communication to the Court of first instance, an order of attachment is made by the latter Court, the order of attachment is not void and ineffectual

as having been made without jurisdiction, but is legally valid, and that the order is effective only from the time it is communicated to the first Court"":

Vevkatachalapathi Rao v. Kameswaramma ILR (1917) 41 M. 151 : 33 M.L.J. 515.

The case came on for final disposal before the referring Judges (Abdur Rahim and Bakewell, JJ.) and they passed the following judgment in the

case on 18th December, 1917:

The appeal will be allowed, the respondent''s petition dismissed, and the attachment restored. The appellant will recover his costs from the

respondent throughout.

On the allegation that by a sale deed, dated 27th May, 1914, Gadiraju Venkatappayya and others had purchased the property in question from

Venkataramanayya, they (the vendees) filed a petition on 26th August, 1918, under Order 21, Rule 58, Civil Procedure Code, to raise the

attachment on the ground that there was no valid attachment on the properties on the date of their purchase. The decree-holder contested the

position with the result that the petition was dismissed on 31st October, 1919. The vendees (Gadiraju people) filed O.S. No. 142 of 1920

purporting to be under Order 21, Rule 63, Civil Procedure Code, for setting aside the order passed on the 31st October, 1919, and they made

the decree-holder in O.S. No. 38 of 1912 as the first defendant to their suit and Kameswaramma (the widow of the judgment-debtor in O.S. No.

38 of 1912) was made the second defendant. Various contentions were raised by the parties, such as, for example, whether there was a valid

attachment of the properties, whether the question was res judicata by reason of the order passed by the High Court on the 18th December, 1917,

whether the plaintiffs were estopped from questioning the attachment, and whether the suit was barred by Section 47 of the Civil Procedure Code.

Both the Lower Courts having dismissed the suit, the plaintiffs (Gadiraju people) preferred a second appeal to the High Court. The learned Judge

who heard the second appeal was of opinion that on the facts disclosed by evidence in the present case there was no legal and valid attachment on

the properties, that the plaintiffs who were not parties to the proceedings that came before the High Court in connection with the execution of the

decree in O.S. No. 38 of 1912 were not bound by the orders passed therein, and that it was open to the plaintiffs to show that there was no valid

attachment on the property when they purchased the same on the 27th of May, 1914. The learned Judge came to the conclusion that after the ad

interim stay order passed by the Appellate Court on the 13th of March, 1914, was received in the District Munsif''s Court on the 16th March,

1914, no proceedings in execution could be legally taken in the case, and that the attachment which was effected by affixing a notice on the

properties on the 17th March, 1914, and on the Court-house and the Collector''s Office on the 23rd March, was not merely irregular but illegal

and void. Holding that the plaintiffs were not bound by the orders passed against their vendor--the judgment-debtor--after the judgment-debtor

had sold the properties to them, the learned Judge reversed the judgments of both the Lower Courts and set aside the order passed in the claim

petition on the 31st of October, 1919.

The 1st defendant has preferred this Letters Patent Appeal.

Though several points were sought to be raised before us by the earned Counsel on either side, we thought it advisable to restrict arguments in

the first instance to the issue whether the main question has become res judicata by reason of the order passed by the High Court on the 18th

December, 1917, and whether the plaintiffs are bound by the said order. After hearing full arguments on that question, we have come to the

conclusion that the plaintiffs are so bound, and that it is not necessary to consider the other points raised in the case.

Venkataramanayya, the judgment-debtor in O.S. No. 38 of 1912, must be taken to have had full knowledge of all the proceedings that took

place in execution of the decree in that suit, and pending the disposal of the appeal he got an ad interim order of stay of execution on the 13th

March, 1914. The further proceedings that took place in the District Munsif''s Court in connection with the attachment proceedings also must have

been known to him, viz., that the amin reported on the 17th March, 1914, that he had in pursuance of the order passed by the District Munsif on

14th March, 1914, carried out attachment by affixing a copy of the proclamation on the lands on 17th March, 1914, and that similar copies were

affixed to the notice-board in the Court-house and in the Collector''s Office on 23rd April, 1914, though the stay order passed by the Appellate

Court was received in the District Munsif''s Court on the 16th of March, 1914. All this is not denied. He also knew that the said ad interim stay

order was vacated on 15th April, 1914, by the Appellate Court as he had failed to furnish security as directed by that Court. It is in these

circumstances that he sold the property to the Gadiraju people on 27th May, 1914. What the exact effect of the proceedings that had taken place

in the District Munsif''s Court would be, in the circumstances, is a matter essentially relating to the execution of the decree in O.S. No. 38 of 1912.

The judgment-debtor would be bound by the decision of the executing Court as regards the effect of these proceedings, and prima facie any

person who claims title under the judgment-debtor after the happening of those events would also be bound by the decision of the executing Court

as to the exact effect of those proceedings. The judgment-debtor could not, by transferring the property at that stage, render the decision that may

be--and in ordinary circumstances would be--passed by the executing Court as regards the effect of those past events, nugatory as far as the

decree-holder is concerned. On the other hand, the purchaser from the judgment-debtor in such circumstances would prima facie take the

property only subject to the disabilities they were under when in the hands of the judgment-debtor. When, therefore, the decree-holder sought to

proceed further with his execution application which he had already filed in March, 1914, and wanted to bring the property to sale in pursuance of

the steps taken by him in March, 1914, the executing Court had to decide whether there was a valid attachment of the properties in March, 1914.

The circumstance that the Court was called upon to decide that question formally only after the judgment-debtor has sold the properties to the

plaintiffs should not alter the essential nature of the said proceedings, nor take away the jurisdiction of the Court in which the said execution

proceedings were then pending to adjudicate on that question; nor is it material that the question came up for consideration on a petition filed by

the judgment-debtor. It is clear from that petition (C.M.P. No. 1950 of 1914) that the decree-holder in O.S. No. 38 of 1912 had applied for sale

in pursuance of the attachment effected in March, 1914. The Courts had accordingly to consider what exactly would be the effect of the

proceedings that had taken place in March, 1914, and the High Court on 18th December, 1917, passed final orders on that question in the

following terms:

The appeal will be allowed, the respondent''s petition dismissed, and the attachment restored.

The judgment-debtor''s widow was a party to the said proceedings in the High Court, and she could not therefore contest the binding nature of

the said decision; but are the present plaintiffs (the vendees from the judgment-debtor under a sale-deed dated in May, 1914) in a better position?

We are not referred to any reported decision directly bearing on the point.

After consideration of the question we have come to the conclusion that they are not.

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 Courts'' decision as to the effect of the

proceedings actually taken before his purchase. Such purchaser would be bound by the Courts'' 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 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 facie they must be taken to have purchased it subject to the result of those proceedings. The principle of the doctrine of

Us pendens would apply to such a case. If for any reason the proceedings that were had 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 plaintiff''s

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

decision of the Courts as to the effect of the past proceedings is given only after the plaintiff''s purchase, if the adjudication is really with reference

to matters that happened before such purchase and regarding the effect of the legal proceedings that were had prior to the same. To safeguard the

purchasers'' rights, the purchasers should in such circumstances get themselves impleaded as parties.

To take an analogous case, in a suit to recover money, if questions should arise whether the plaint contained sufficient allegations claiming and

justifying a charge, and whether the prayer claiming a charge on certain properties was specific or not, the Trial Court would have to decide those

questions by its final judgment and decree, and if the Court should decide the questions in favour of the plaintiff and give him a decree for money

charged on the properties mentioned, it would seem that the decision would be binding on a purchaser from the defendant pending suit, though he

be not actually a party to the decree. He would not be allowed to show in a subsequent suit that the prior decision was wrong in the absence of

fraud or collusion. The case might be different if the plaint was subsequently amended so as to claim a charge on a particular property, after that

property had been sold away by the defendant to a stranger.

In the case before us, it is not contended (not even suggested) that the proceedings conducted by the judgment-debtor were not conducted

bona fide or that there was any fraud or collusion between the judgment-debtor and the decree-holder in connection with the same. On the other

hand, it is admitted by one of the present plaintiffs, when examined as a witness in the present suit, that he was really conducting those proceedings

on behalf of the judgment-debtor''s representative--the widow. After the sale of the suit properties to the plaintiffs on 27th May, 1914, it is difficult

to understand why the judgment-debtor should have troubled himself, and why a petition, CM.P. No. 1950 of 1914, should have been filed on 6th

October, 1914, to ''cancel the attachment and the sale application made by the decree-holder.'' As remarked by the Lower Appellate Court:

It seems difficult to avoid the inference that the plaintiffs having been worsted in their attempt to get the attachment set aside by proceedings in the

name of Venkataramanayya have hit upon the expedient of a claim petition and the suit to achieve the same object.

It was further argued that the attachment made in March, 1914, should be taken to have been completed only on 23rd March, 1914, when

copies of the proclamation were affixed in the Court-house and in the Collector''s Office in accordance with the provisions of Order 21, Rule 54,

Civil Procedure Code, and as the stay order was perused by the District Munsif on 17th March, 1914, the subsequent acts done on 23rd March,

1914, should be taken to be ultra vires, and that there was no complete and valid attachment in the eye of the law; and the decision of the Full

Bench in S''innappan v. Arunachalam Pillai ILR (1917) 41 M. 151 : 33 M.L.J. 515 was relied on. Assuming the argument to be correct, that does

not take away the binding nature of the decision passed by this Court on 18th December, 1917, that the attachment was valid and restoring the

attachment.

Orders passed in the course of execution proceedings adjudicating on the rights of the parties are res judicata and could not be called in

question by the parties or their representatives. When once the said orders become final, that effect could not be sought to be avoided by making

allegations that the previous decisions were wrong on the merits because full facts were not placed before the Court or that all available evidence

was not let in on the former occasion. See Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37 : ILR 6 A. 269 (P.C.), (1881)

L.R. 8 I.A. 123 (Privy Council) and Raja of Ramnad v. Velusami Tevar (1920) L.R. 48 LA. 45 : 40 M.L.J. 197 (P.C.)

It therefore seems to us that the present plaintiffs are bound by the orders passed by the High Court restoring attachment.

It is a matter for satisfaction that we have been able to reach this result, since there is no doubt that the conduct of the judgment-debtor in

getting an interim stay from the Appellate Court (which was finally dismissed as no security was furnished) and then transferring the properties to

the plaintiffs who had (there is no doubt) notice of all the proceedings--thus defeating the decree-holder--would surely be reprehensible from the

moral point of view.

We accordingly hold that the present plaintiffs are bound by the final orders passed in execution proceedings in O.S. No. 38 of 1912 in which

it was held by the High Court in effect that there was a valid attachment in March, 1914, of the properties in dispute, and that the said ""attachment

should be restored"". The plaintiff''s purchase from the judgment-debtor in May, 1914, should be taken to be subject to that attachment. Allowing

this Letters Patent Appeal, we restore the decision of the Lower Appellate Court with costs here and in Second Appeal.