1. The plaintiff in O. S. No. 44 of 1946 in the Court of the Subordinate Judge of Chittoor is the appellant. The suit was for a declaration of his title to certain properties described in schedule A to the plaint and for an injunction restraining the defendants from interfering with his possession and enjoyment of some of the items in schedule A described separately in schedule B.
2. The suit properties according to the plaintiff originally belonged to one Megavarnam Nayanim Varu, the father of defendants 1 and 2 and the grandfather of defendant 5. One K. L. Narasimhachari obtained a decree in O. S. No. 45 of 1940 on the file of the Sub-Court, Chittoor against the present defendants 1 and 2 and the father of defendant 5 for the amount due to him under a promissory note executed by Megavarnam. That decree was passed on 19th June 1940. After two applications filed in 1941, E. P. No. 3 of 1942 was filed by the original decree-holder against the father of defendant 5, defendants 1 and 2 who was then a minor represented by his mother as his guardian in which inter alia there was a prayer for attachment of properties belonging to the family including the suit properties. It is not disputed that the suit properties meaning thereby the right, title and interest of Megavarnam's branch in Paimash numbers set out in the schedule were attached on 29th March 1942. While this execution petition was pending another application E. P. No. 149 of 1942, was filed by a person who sought to be brought on record as transferee decree-holder, viz., Periya Dasappa Mudali. He was eventually brought on record as transferee on 10th December 1942. On 3rd December 1942 there was an order calling upon the decree-holders to produce a draft sale proclamation and further time was granted on 17th December 1942 till 2nd January 1943. On 2nd January 1943 the following order was made on the execution petition :
'Attachment kept alive till the decree is fully satisfied. The petitioner may apply for the proclamation and sale of the attached property by means of a fresh petition accompanied with the D. S. P. (Draft sale proclamation).'
On 1st March 1943 a fresh execution petition (E. p. no. 29 of 1943) was filed by the transferee-decree-holder. In this application also enforcement of the decree was sought against the father of defendant 5, defendants 1 and 2 described as a minor represented by his mother as guardian. This petition prayed for attachment of properties not concerned in the suit and for sale of the suit properties after due proclamation. From the indorsement on this application we find that the respondents were served with the sale notice and on 22nd September 1943 the Court declared them ex parte and adjourned the proceedings to 27th September 1943 for settlement of proclamation. Eventually on 30th September 1948 there was an order directing the property to be sold on 28th December 1943. The sale was again postponed to 14th March 1944 on which date the sale was held and the suit properties were purchased by the plaintiff. The sale was duly confirmed and a sale certificate, EX. P. 1, was granted to the plaintiff on 16th January 1945. The properties were described by paimash numbers with extents and with the remark :
'In these properties excluding the one-half share belonging to Manikyam Naidu, that is, the brother of Megavarnam, the one-half share belonging to the defendants, i. e., the judgment-debtors.'
The property set out in schedule B is described as Mamidhi thota chenu in respect of which also what was sold was the half share of Megavarnam. According to the plaintiff in pursuance of this sale certificate he obtained possession of definite parcels of property which belonged to his judgment-debtors. In the Mamidi thota chenu (property set out in schedule B) he obtained possession of the western half share belonging to his judgment-debtors. The delivery was on 27th March 1945. The plaintiff alleged that he was in possession and enjoyment of the properties from the time he obtained possession through Court but that the defendants were attempting to trespass on the schedule B properties from May 1946. He therefore prayed both for a declaration of his title as well as for an injunction restraining the defendants from interfering with his possession of the B schedule lands.
3. The main contesting defendants were defendants 2 and 6. Defendant 6 claimed to be the purchaser of the suit properties, i. e., the half share belonging to Megavaraam under sale deed dated 12th December 1942 (EX. D-2). He contended that his sale would prevail over the auction sale in favour of the plaintiff. Defendant 2's plea was that during the execution proceedings he attained majority but he was not declared a major and no notice was served on him as a major before the date of sale. There was also a plea that the decree in O. S. no. 45 of 1940 was not valid and binding on him because there was no proper and valid appointment of guardian and because the guardian was guilty of gross negligence and fraud. But this plea has not been persisted in.
4. The learned Subordinate Judge found that the sale in favour of defendant 6 was pending a substiting attachment and therefore did not prevail against the plaintiff's sale. But he held that as there was a failure to give notice to defendant 2 as major, the sale in favour of the plaintiff was vitiated by such failure and it was not binding on him. He also held that the plaintiff did not obtain possession of any specific portions of the property as belonging to his judgment-debtors and that the plaintiff was not in possession of the B schedule lands at the time of the institution of the suit. In the result, he held that the plaintiff was not entitled to the suit properties and was not in possession of the same and dismissed the suit.
5. Before us in appeal the plaintiff attacked the findings of the lower Court on two points, namely, (i) the validity of the sale in favour of the plaintiff so far as defendant 2 is concerned and (ii) possession of the suit properties by him. Defendant 6 in his turn attacked the finding of the learned Judge that the sale in his favour was of no avail against the plaintiff.
6. The question whether the sale in favour of defendant 6 can prevail over the sale in favour of the plaintiff depends entirely on whether in law there was a subsisting attachment on the date of the sale in his favour i. e., 12th December 1942 and that attachment never ceased till the court auction in 1944. The decision of this question eventually depends on the construction of the order passed by the learned Judge on 2nd January 1943 and on the determination of its legal effect. The learned counsel for defendant 6 contended that this order must be treated in law as an order of dismissal of the execution petition on account of the decree-holder's default and therefore under the provisions of O. 21, R. 57, as amended by this Court the attachment ceased on and from that date and there was no subsequent attachment of the suit properties before the sale in his favour. He relied upon the ruling of a Division Bench in Venkatrao v. Venkata kumaramahipathi Surya Rao Bahadur : AIR1950Mad2 . The order in that case which was construed by the learned Judges as an order of dismissal on account of the decree-holder's default was as follows : 'The petitioner had ample time even after filing the E. P. Rejected.' The reference is to the production of the encumbrance certificate. The learned Judges held that this was an order of dismissal and once it was construed as an order of dismissal on account of the default of the decree-holder, the attachment ceased even though the Court omitted to state that the attachment would cease. As was observed by the learned Judges in that case, it is not open to us to canvass the correctness of the order. The only question is whether the order dated 2nd January 1943 could be construed as an order of dismissal. The learned Judges in that case found no indications in the order to show that what the learned District Munsif wanted to do was merely to adjourn the petition. Ultimately, we have to determine on the circumstances and facts of the case before us what was intended and what was expressed by the learned Judge when he passed the order. In our opinion, it is clear that the learned Judge did not dismiss the application. Still less did he indicate that there was default on the part of the decree-holder which deserved a dismissal. On the other hand, the opening words of the order keeping the attachment alive make it abundantly clear that the Judge did not intend to dismiss the application and thereby to raise the attachment. What he did was to keep the attachment alive and to permit the decree-holder to apply for the proclamation of sale of the attached properties by means of a fresh petition. Once we hold that there was no dismissal of the execution petition for the default of the decree-holder, the law is clear that the attachment would continue, especially when the Judge himself directed that it should continue till the decree was fully satisfied. It follows therefore that on the date of the sale in favour of defendant 6 i. e., on 12th December 1942, there was a valid attachment subsisting in pursuance of which eventually the court sale took place and the plaintiff became the purchaser. We agree with the learned Judge's finding on this point.
7. It is difficult to follow the finding of the learned Judge that the sale in favour of the plaintiff cannot bind defendant 2 because of failure on the part of the decree-holder in O. S. no. 45 of 1940 to give notice to defendant 2 as major. It is common ground that the defendant 2 was a minor on the date of the decree. He was certainly a minor on the date of the sale in favour of defendant 6 i. e., on, 12th December 1942. Thereafter when exactly defendant 2 attained majority there is no evidence on record. It was incumbent on him to have led evidence to show exactly when he attained majority. Instead of doing so, what he has chosen to do is to rely upon the statement in an affidavit filed on behalf of the transfree-decree holder on 27th September 1943 in E. P. no. 125 of 1943 that after the prohibitory order was sent it was learnt that he had ceased to be a minor. His application to declare defendant 2, who was the third respondent in the execution petition a major, could not be disposed of finally till 22nd June 1944 by which time the sale had taken place. The position then is that one of the judgment-debtors who was admittedly a minor at the commencement of the proceedings in execution and continued to be a minor when decisive steps were taken by the decree-holder to enforce his rights under the decree, attained majority some time before the sale took place. From the record it appears notices were served on him as a minor by his guardian. The question is whether there is anything in the provisions of the Civil Procedure Code which compels a decree-holder to bring to the notice of the Court that one of the judgment-debtors had attained majority and after a declaration to that effect he should take out notice to that judgment-debtor as major. Learned counsel for the contesting respondents was unable to point out any such specific provision in the Code. He relied on the ruling in T. Jagannadhan v. Seshagiri Rao, 20 M. L. T. 479 : A. I. R. 1917 Mad. 42 in support of his contention that a sale held without notice to one of the judgment-debtors who was a major but who had been wrongly described as a minor was liable to be set aside at the instance of that judgment-debtor. In that case the judgment-debtor was wrongly treated as a minor throughout the execution proceedings from their very commencement. Actually he had attained majority even before the decree though he was a minor at the time of the institution of the suit. That was not a case in which a judgment-debtor was a minor at the time of the commencement of the execution proceedings but bad attained majority during the continuance of such proceedings. That case can be likened to a suit against a major described wrongly as a minor. Strictly speaking, such a person cannot be deemed in law to have been a party at all to the suit. On the same analogy, if a person, who was a major at the time of the commencement of the execution proceedings, was throughout the proceedings wrongly described as a minor and notice never went to him as a major, the result would be that the entire proceedings were without notice to him. A sale held, in the course 'of such execution proceedings certainly cannot bind him. That however is not the ease here. Defendant 2 was certainly a minor at the time when E. P. no. 3 of '1942 was filed and at the time when the transferee-decree-holder was brought on record, and there is nothing on record to show that he was not a minor even when E. P. No. 29 of 1943 was filed on 1st March 1943. If thereafter he became a major, there is nothing in law which made it obligatory on the part of the decree-holder to have him decleared as a major. If he had attained majority, he could have himself brought that fact to the notice of the Court In the absence of any direct authority that the decree-holder is under an obligation to take steps to have it declared that an erstwhile minor judgment-debor has attained majority we are of opinion that the sale held in this case without notice to defendant 2 as major was not invalid.
8. There remains then the question of possession. We do not think that this question can be satisfactorily disposed of in this case. In his schedule to the plaint, the plaintiff did not describe the boundaries of the properties which according to him he obtained possession of through Court in pursuance of the sale certificate in his favour. No doubt he filed an application for amendment at a late stage ; but that application was dismissed and rightly. We are not satisfied on the evidence on record that the plaintiff was in possession of the properties in schedule B. In any event, the evidence is not of such a character as to compel us to hold that the properties which belonged to the judgment-debtors in O. S. no. 45 of 1940 were definitely demarcated and that the plaintiff obtained possession through Court of definite portions of what was certainly at one time the property belonging to undivided brothers. We think that it would be more satisfactory if this matter is fully thrashed out in a separate suit to which the other sharers i. e., the descendants of Megavarnam's brother are also parties.
9. In our opinion therefore the plaintiff in this suit would only be entitled to a declaration that he is entitled to the properties set out in schedule A by virtue of the court sale held in execution of the decree in O. S. no. 45 of 1940. He will be entitled to no other relief.
10. The decree of the lower Court is set aside and the appeal is allowed in part and there will be a decree as indicated above. We think that in the circumstances of this case each party should bear his costs, both here and in the Court below.