Tirumalai Aiyangar vs Arunachala Thevar and Another

Panchapagesa Sastri, J.—The defendant is the appellant. Respondents 1 and 2 filed the suit for declaration of their title to item No. 2 of the

plaint schedule and for an injunction or alternatively for possession of the same. The said item is an extent of 68 cents in the southernmost portion

of the northern half of S. No. 455/1, the total extent of which is 4 acres and 8 cents. One Narayana Rao and his. two brothers owned the northern

portion of S. No. 455/1, to the extent, of two acres and 5 cents. It is not quite clear whether the extent really is 2 acres. 4 cents, or 2 acres 5

cents. In 1921 there appears to have been a partition, in and by which the southernmost portion was allotted to Narayana Rao. There was an

attachment before judgment of Narayana Rao''s interest in 2 acres and 5 cents belonging to himself and his brothers in common in O.S.. No. 248

of 1932. The attachment was apparently on the footing of an undivided coparcenary interest of Narayana Rao in the family properties. The fact

that there had been a partition was not known to the plaintiff in that action who got the attachment. In 1935 all the three brothers sold the entire

property to the present respondents for a sum of Rs. 600. The patta appears to have been a joint patta all along. There is no reference in the sale

deed to the partition of 1921 or to separate possession and enjoyment of separate portions of the property by the three brothers. Prima facie it

looks as if it is a conveyance by all the three brothers of what was joint property for raising funds to meet family expenses. In 1942 the present

appellant filed E.A. No. 49 of 1942 for execution of the decree which he had obtained against Narayana Rao by sale of the property which had

been attached before judgment. On 5th March, 1942, the following order was passed on that application:

Defendant''s notice returned unserved for want of proper address and residence. The-petition may be renewed with correct address. Struck off.

The attachment will subsist.

Subsequently, the appellant filed another execution petition, E.P. No. 300 of 1942, for sale of the attached property. This was ordered and he

purchased the property on 12th March, 1943. The sale was confirmed on 16th April, 1943.

The question in dispute in this second appeal relates to the competing title of respondents 1 and 2 who purchased under the private sale of 1935

and of the appellant who purchased in execution of his decree in O.S. No. 248 of 1932. Two-points are raised and argued in this second appeal.

The first relates to the question, whether the property which was purchased by the respondents is the property which was attached before

judgment. The second point is whether the attachment had come to an end by reason of the order in E.P. No. 49 of 1942. The respondents'' title

to the properties can be defeated only by reference to Section 64 of the Civil Procedure Code.

On the first point, the learned District Munsiff held that the property purchased by the respondents was not the property which had been

attached by the appellant, because what was attached was an undivided one-third interest in 2 acres and 5 cents belonging in common to

Narayana Rao and his two brothers, whereas what was purchased was a specific plot of 69 cents in the southernmost portion of the said field

which had been allotted to Narayana Rao under the partition in 1921. The learned District Munsiff relied on the decision in Hargulal Singh v.

Muhammad Raza Khan ILR (1890) All. 119. On appeal, the learned Subordinate Judge disagreed with this view and held that the purchased

property must be deemed to be the same as the property which was attached. He distinguished the case in Hargulal Singh v. Muhammad Raza

Khan ILR (1890) All. 119., where what was attached was altogether a different interest in the property from what was subsequently sold, the two

interests being separate and of different: values. That was really a case where the properties must be deemed to have been distinct and different. It

is not possible to take the same view of the property in question in the present case. It is only a different form of the right, title and interest of

Narayana Rao which was attached and which was sold. No doubt, there was an error or a misdescription in describing the nature and interest of

Narayana Rao in the property when it was attached; but in the circumstances of the case I agree with the learned Subordinate Judge in holding that

the property purchased by the respondents was in fact and also must be deemed in law to be the identical property which had been attached

earlier by the appellant.

On the second point whether the attachment before judgment had come to an end by virtue of the order, dated 5th March, 1942, in E.P. No.

49 of 1942 which I have extracted above, the Courts below have held that by virtue of Order 21, Rule 57, the attachment ceased. Although the

order stated that the attachment will subsist, it will be really contrary to the provisions of the proviso to Order 21, Rule 57, if the same should be

held applicable. The learned advocate for the appellant argues that the present order is not one really where there has been a dismissal for default

of the decree-holder entailing the penal consequences of the cessation of the attachment. The order itself, it may be noted, does not definitely

indicate that it was dismissed for default of the decree-holder. Such indications as are contained in the order would seem to be more in favour of

the view that the Court was really adopting a procedure which, though condemned several times before, would still seem to be persisting in the

lower Courts. The expression used is ""struck off"" and it is one which the CPC does not warrant. There are clear indications that the learned

Subordinate Judge did not mean to dismiss the execution petition for default of the decree-holder, but was merely adjourning it in truth though

closing it for statistical purposes, because he says "" the petition may be renewed with correct address ""; and adds "" the attachment will subset."" No

doubt, there is a reference to the fact that the notice was re-turned unserved for want of proper address and residence. Even so, the correct order

would have been one ordering fresh notice and not dismissing the execution. petition as if for default. That is not a case where the decree-holder

has not paid batta though notice was ordered and in consequence there was no service. Apparently, some particulars were given: either they were

not full or some were incorrect. It is not even found whether the decree-holder did it deliberately or knowingly. Under these circumstances, I am

not prepared to read this order as a dismissal for default within the meaning of Order 21, Rule 57 of the Civil Procedure Code. I therefore hold

that the attachment before judgment had not ceased to exist. if that is so, the sale in pursuance of the attachment, in favour of the appellant must

prevail over the private purchase by the respondents.

In the result, the second appeal is allowed and the suit is dismissed with costs throughout.

Leave refused.