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Dunna Venkata Rao Vs. Sree Rajah Saheb Meharban I Dostan Rajah Rao Venkatakumaramahipathi Surya Rao Bahadur Garu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)1MLJ320
AppellantDunna Venkata Rao
RespondentSree Rajah Saheb Meharban I Dostan Rajah Rao Venkatakumaramahipathi Surya Rao Bahadur Garu and anr.
Cases Referred and Seetharaman v. Chidambaram
Excerpt:
- - the attachment before judgment had ceased,that the mortgage in his favour was valid and that he had acquired a good title to the property by virtue of the court auction purchase. and that he had acquired a good and valid title and that the first defendant under his purchase acquired no rights. if the attachment had ceased, the mortgage in favour of the plaintiff would be valid, and he acquires a good title under his purchase. the 'default' contemplated was not merely one of default in appearance or in payment of process fee or production of documents but included also the failure to do what a decree-holder was bound to do, in order to enable the court to proceed further with the application for execution. 3). the appellant contends that as the petition was rejected for default of.....satyanarayana rao, j.1. this second appeal was referred by me to be heard by a bench as it raised two important questions, one relating to the interpretation of order 21, rule 57, civil procedure code as amended by this court and the other concerning the effect of a prior execution order on the title of the plaintiff.2. the subject matter of this second appeal is a house which once belonged to the second defendant. on 15th june, 1930, the second defendant obtained a loan from the co-operative society, vuppada, giving some properties of his as security. the society subsequently discovered that the security was insufficient and demanded the second defendant to give further security. by an agreement dated 5th of may 1935, the second defendant agreed to mortgage the suit house to the said.....
Judgment:

Satyanarayana Rao, J.

1. This second appeal was referred by me to be heard by a Bench as it raised two important questions, one relating to the interpretation of Order 21, Rule 57, Civil Procedure Code as amended by this Court and the other concerning the effect of a prior execution order on the title of the plaintiff.

2. The subject matter of this second appeal is a house which once belonged to the second defendant. On 15th June, 1930, the second defendant obtained a loan from the Co-operative Society, Vuppada, giving some properties of his as security. The Society subsequently discovered that the security was insufficient and demanded the second defendant to give further security. By an agreement dated 5th of May 1935, the second defendant agreed to mortgage the suit house to the said society. The society obtained an award in respect of the amount due to it against the second defendant, on the 21st of July, 1937. In pursuance of this award the properties of the second defendant were brought to sale and were purchased by the first defendant, the Maharajah of Pithapuram. With a view to get that sale set aside, the second defendant raised funds by mortgaging the suit house to the plaintiff by a mortgage dated 20th of August, 1937, (Ex. P. 1). The amount was paid by the plaintiff to the Co-operative Society, and the sale was consequently set aside on 30th of August, 1937. While these proceedings were going on, the first defendant instituted O.S. No. 429 of 1935 on the file of the District Munsiff's Court, Peddapuram against the second defendant who was a karnam of one of the villages comprised in the estate of the first defendant for the recovery of an amount which it was alleged the second defendant misappropriated. The suit house was attached before judgment on the 15th of October, 1936, and the suit was decreed on the 24th of September, 1937. On the 26th of October, 1938, the first defendant filed an execution petition which was un-numbered and which may be described as E.P. No. 1 for bringing the suit house which was attached before judgment to sale in pursuance of the attachment already effected and also for leave to set off under Order 21, Rule 72. That petition was returned on the 29th of October, 1938, for filing the sale papers, and the encumbrance certificate granting two weeks' time. It was re-presented by the decree-holder, the first defendant, on the 12th of November, 1938, with a prayer to grant a further week's time, as the encumbrance certificate which was applied for was not received by then. By an order of 15th November, 1938, the petition was rejected by the Court. The order was as follows : 'Petitioner had ample time even after filing the E.P. Rejected.' In 1939, the decree-holder filed a second execution petition, E.P. No. 37 of 1939, for bringing the property to sale. After receiving notice, the judgment-debtor, the second defendant, objected to the sale on the ground that the attachment before judgment made in the suit came to an end under Order 21, Rule 57, Civil Procedure Code and that a fresh attachment was necessary before a sale could be ordered. His contention was that the first execution petition was dismissed for default of the decree-holder and that therefore the attachment came to an end under Order 21, Rule 57. The matter was considered by the same District Munsiff who passed the order on the first execution petition. He was of opinion that the first execution application had no legal existence as it was not numbered and was not admitted, and therefore, the rejection of that application had not the consequence of terminating the attachment under Order 21, Rule 57. The order of the District Munsiff is dated 23rd of August, 1939 (Ex. D. 1). There was an appeal against that order by the judgment debtor to the Subordinate Judge of Coconada (A.S. No. 100 of 1939). He confirmed the order of the learned District Munsiff substantially for the same reasons (Ex. D. 2). In pursuance of that E.P. however, the sale was not effected and the proceedings terminated.

3. The plaintiff obtained preliminary and final mortgage decrees on the basis of the mortgage in his favour (Ex. P. 1) in 1939 in O.S. No. 32 of 1939, or District Munsiff's Court, Peddapuram, and brought the hypotheca to sale and purchased it himself on 30th of January, 1940. He obtained a sale certificate dated 12th March, 1940, and obtained delivery of possession also in 1943.

4. In 1942, the first defendant filed a third execution application to bring the suit house to sale in pursuance of the decree in O.S. No. 429 of 1935. The plaintiff who became the purchaser of the property in pursuance of his mortgage decree intervened with a claim petition, E.A. No. 922 of 1940 objecting to the sale of the property on the ground that with the rejection of the first E.P. the attachment before judgment had ceased,that the mortgage in his favour was valid and that he had acquired a good title to the property by virtue of the Court auction purchase. This application was dismissed on the 18th of July, 1942. In pursuance of the third execution petition the suit house was sold and the first defendant purchased it in Court auction on the 17th of November, 1942. The plaintiff was therefore obliged to institute the suit out of which this second appeal arises for setting aside the summary order dated 18th July, 1942, passed on E.A. No. 922 of 1940 in O.S. No. 429 of 1935, District Munsiff's Court, Peddapuram. The main contention of the plaintiff was that the attachment before judgment ceased with the rejection of the first E.P. and that he had acquired a good and valid title and that the first defendant under his purchase acquired no rights. The learned District Munsiff upheld the contentions of the plaintiff and decreed the suit. On appeal the learned Subordinate Judge of Coconada reversed the decision of the District Munsiff and dismissed the plaintiff's suit. The learned Subordinate Judge was of opinion that the attachment before judgment did not cease by reason of the order dated 15th of November, 1938, on the first E.P. (Ex. P. 3), and that the plaintiff was also further bound by the decision of the learned District Munsiff in Ex. D. 1, which was affirmed on appeal by the Subordinate Judge in Ex. D. 2, though the plaintiff was not a party to those proceedings. The plaintiff preferred this second appeal against the decision of the learned Subordinate Judge.

5. Two questions arise for consideration in this second appeal. The first is whether the order in Ex. P. 3 dated 15th November, 1938, had the legal effect of putting an end to the attachment. If the attachment had ceased, the mortgage in favour of the plaintiff would be valid, and he acquires a good title under his purchase. If, on the other hand, the attachment continued, the plaintiff's rights under his purchase have to yield to the rights of the first defendant acquired by him in the execution sale in O.S. No. 429 of 1935 by reason of Section 64, Civil Procedure Code. The second question is whether the plaintiff was bound by the order passed by the District Munsiff in the second E.P. holding that the attachment continued, which was confirmed by the Subordinate Judge even though the plaintiff was not a party to those proceedings.

6. On the first question we are of opinion that the view of the learned District Munsiff is correct and that the attachment terminated on the 15th of November, 1938. The contentions raised before us turned mainly on the construction of Order 21, Rule 57 as amended by this Court in the year 1936.

7. In the Civil Procedure Code of 1882 (Act IV of 1882) there was no provision similar to Order 21, Rule 57. Considerable difficulty was experienced in interpreting orders of Courts passed on execution petitions 'striking off execution proceedings ', or ' removing proceedings from the file ' or ' lodging ' them. There was considerable doubt whether such orders had the effect of putting an end to the attachment. There was no justification, it was felt, for such orders under any of the provisions of the Code. In order to put a stop to the practice of making such orders the Code of 1908 for the first time introduced the new rule, Order 21, Rule 57 which is in these terms:

When any property has been attached in execution of the decree but by reason of the decree-holder's default the Court is unable to proceed further with the application in execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.

The rule gave an option to the Court, when by reason of the decree-holder's default it was unable to proceed with the further execution either to adjourn the proceedings or dismiss. If there was a dismissal of the application the attachment automatically ceased. Though in terms the rule does not apply to cases where there was an attachment before judgment, as such attachment is not strictly in execution of a decree, a Full Bench of this Court in Meyyappa Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 : I.L.R. 47 Mad. 483 held that the expression 'property attached in execution' in Order 21, Rule 57, Civil Procedure Code included also property attached before judgment, when, there was a decree in the suit which was followed by an execution petition for bringing the property attached to sale, and that the dismissal of such application would carry with it the penal consequences provided in Order 21, Rule 57. This was also the view of Bombay and some other Courts, though the High Courts of Allahabad, Calcutta and Patna disagreed with that view. Under this rule it is not every dismissal that would terminate the attachment but only a dismissal for a decree-holder's default. The 'default' contemplated was not merely one of default in appearance or in payment of process fee or production of documents but included also the failure to do what a decree-holder was bound to do, in order to enable the Court to proceed further with the application for execution. When once the Court dismisses the application for default of the decree-holder the Court has no power to continue the attachment as it would be opposed to the mandatory provision in the rule that on the dismissal of such application the attachment shall cease. See Namunna Bibi v. Rosha Miah I.L.R. (1911)Cal. 482 Dildar Husain v. Sheo Narain (1918) 41 All. 157 and Vijayadas Hanumantdas v. Shekharappa Anantappa I.L.R. 1941 Bom. 652. With a view to clarify the rule further this High Court and the other High Courts under the rule making power have altered the provisions of this rule in different ways. In 1936 this High Court substituted for the rule as contained in the Code of 1908, the following rule as Rule 57:

(1) Where any property has been attached in execution of a decree and the Court hearing the execution application either dismisses it or adjourns the proceedings to a future date, it shall state whether the attachment continues or ceases : Provided that when the Court dismisses such an application by reason of the decreeholder's default the order shall state that the attachment do cease.

There is also a Sub-clause (2) to the rule which has been added by this Court but as it is not relevant for the purpose of the present discussion it need not be set out here. Under the first clause the Court hearing an execution application may either dismiss the application or adjourn it to a future date. It is obligatory on the Court to state the fact whether the attachment continues or ceases. The dismissal of the application or the adjournment of it is not confined in this clause to the default of the decree-holder as under the old rule. An execution Court may dismiss the execution application for other reasons than the default of the decree-holder; as for example, where an execution was stayed by a superior Court or under Act IV of 1938, or execution could not be proceeded with for want of bidders on the date of the sale. Under the proviso, however, while the Court dismisses an application by reason of the decree-holder's default it is obligatory on the part of the Court to state that the attachment will cease. This is practically what was provided for in the rule which was replaced, as under that rule when an application was dismissed for default of the decree-holder the attachment immediately ceased. The interpretation placed upon the old rule with reference to the expression 'attached in execution of the decree ' by the Full Bench in Meyyappa Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 : I.L.R.47 Mad. 483 and the meaning of the word ' default ' as interpreted by the decisions under the old rule would equally apply to the substituted rule.

8. With this background we have to examine and consider the effect of the order passed by the District Munsiff on the first E.P. on the 15th November, 1938 (Ex. P. 3). The appellant contends that as the petition was rejected for default of the decree-holder as he failed to furnish the sale papers and the encumbrance certificate it must be deemed to be a 'dismissal' under the proviso to Clause (1) of Order 21, Rule 57, the present case being governed by the Madras Amendment of 1936. The respondent contends firstly that the rejection was really under Order 21, Rule 17 and therefore it must be taken that the first execution petition had no legal existence and the order was inconsequential; secondly, even if the petition was one in accordance with law and had legal existence the expression ' reject ' in the context would not amount to a dismissal carrying with it the consequence of the cessation of the attachment but only an adjournment of the application; thirdly that really there was no default on the part of the decree-holder, and that the order of the District Munsiff was not justified in the circumstances, and that it was open to us in these proceedings to canvass the correctness of that order. Fourthly it was urged, that in any event, as the Court did not pass an order stating that the attachment do cease as contemplated by the rule, the dismissal had not the consequence of terminating the attachment. In other words, this contention really amounts to saying that the attachment would terminate only after the Court passes an order terminating it; otherwise not. The passing of the order by the Court terminating the attachment was a condition precedent according to the respondent the fulfilment of which alone would put an end to the attachment. The order in Ex. P. 3 no doubt after giving a reason for rejecting uses the word 'reject' instead of 'dismiss'.

9. There is no question in the present case of the petition not satisfying the requirements of Rules 11 to 13 of Order 21, Civil Procedure Code. If an application complied with the provisions of Rules 11 to 13 of Order 21 but did not comply with an order passed under Rule 14, it has now been held by the Privy Council in Govind Prasad v. Pawankumar (1943) 2 M.L.J. 121 : 1943 I.L.R. Nag. 669 (P.C.) that the application was nevertheless one in accordance with law as Rule 14 was merely permissive unlike Rules 11 to 13 which were mandatory There is no question in the present case of not complying with any order passed under Rule 14. The application complied with the provisions of Rules 11 to 14. Therefore it cannot be said that the Court rejected the application under Rule 17 of Order 21, Civil Procedure Code. No doubt the application was not numbered and was not registered. This is of no consequence in determining whether the order was final or not, provided there was a judicial determination of the petition bv the Court as finally decided by the Full Bench in Seshagirirao v. Subbaramireddi : AIR1945Mad154 . The learned District Munsiff who passed the order in Ex. D-1 and the learned Subordinate Judge who confirmed it in appeal in Ex. D-2 did not base their decision on the interpretation of the language of the Order but on the ground that the petition was unnumbered and was not registered, and therefore it was a rejection within the meaning of Order 21, Rule 17. Their conclusion was that the petition had no legal existence. This view is clearly erroneous for two reasons : firstly because the first execution application complied with all the requirements of the Code in Rules 11 to 14 of Order 21, and secondly because if once there was an execution petition which was in accordance with law and a judicial order was passed thereon the mere fact that it was unnumbered and unregistered would not affect its legal existence. The contention therefore that the order of rejection on the first execution petition was not a legal order cannot be accepted. This is the main ground on which the learned Subordinate Judge reversed the decision of the District Munsiff.

10. It is not open to us to canvass the correctness or otherwise of the order of the learned District Munsiff in rejecting the application. The order has become final and it is not open to the respondent to attack its correctness in a collateral proceeding, as was pointed out by Varadachariar, J., even in the very decision which was relied on very strongly by the respondent, viz., the decision in Sathappa Chettiar v. Chockalingam Chettiar (1940) M.W.N. 69. If there is any ambiguity in the order it is however open to us, to consider whether the order amounts to one of dismissal notwithstanding the use of the word 'reject'. The learned District Munsiff has given a judicial reason for rejecting the application, namely, non-production of the sale papers and the encumbrance certificate, though the decree-holder had ample opportunity to produce them. He therefore considered it as a case of default. There are no indications in the order to show that the learned District Munsiff did not treat it as a case of default. If so much is granted car, the word 'reject' be interpreted as meaning 'adjourn', as contended by Mr Raghava Rao for the respondent If this contention were to be accepted the order would run as follows :

The petitioner had ample time even after filing the E.P. Adjourn.

It is difficult to accept the contention that the District Munsiff intended to adjourn the petition even though the petitioner had ample time even after filing the E. P to get the sale papers and the. encumbrance certificate. The only reasonable order that could be passed and must have been intended to be passed by the learned District Munsiff was that the decree-holder ought not to be given further indulgence and that the petition should be dismissed. We see no reason to accept this contention of Mr. Raghava Rao. The order therefore must be treated as one of dismissal.

11. Would the fact that the Court did not state that the attachment do cease prevent the dismissal of the petition from operating to terminate the attachment The rule apparently assumed that the Court would do its duty in following the clear and mandatory directions contained in it. If the directions are followed, the Court is bound to state the consequence of dismissal for default of the decree-holder. Some of the High Courts in the rule they framed clearly stated that the attachment would cease if the Court omitted to give any direction. It would have been better if some such clause were also added by this Court, but in our opinion the fact that the Court failed in carrying outits duty wouldnot prevent the cessation of the attachment The language of the clause clearly does not make it a condition precedent for the termination of the attachment that the Court should make an order. It merely, directs the Court to state the consequence of the dismissal, that is, the termination of the attachment. It is the dismissal by reason of the decree-holder's default that brings about the termination of the attachment, and the Court is merely directed to state in the other that consequence. If the Court omitted to state so, it would not prevent the attachment from coming to an end. It may be a difficult question to answer as to what should happen if the Court omits to state whether the attachment continues or ceases when the application is dismissed or adjourned as contemplated in the body of the clause. An attachment, it has to be mentioned, does not otherwise cease unless there was a satisfaction or adjustment of a decree or sale of the property or a decree was set aside or attachment was withdrawn or abandoned, and in the case of attachment before judgment the suit was dismissed For the determination of the attachment in cases not covered by the proviso, ordinarily an order of the Court would be necessary, and the omission to state whether the attachment continues or ceases would probably result in the continuance of the attachment; but when by reason of the decree-holder's default the application was dismissed, the attachment undoubtedly ceases whether there was or was not an order of the Court stating the consequence. That is the effect of the clause.

12. The decision in Sathappa Chettiar v. Chockalingam Chettiar (1940) M.W.N. 69 on which strong, reliance was placed by Mr. Raghava Rao does not help him in any of his contentions. In that case the petition was rejected for defects of the kind contemplated in Rule 17 of Order 21. There was therefore no execution petition in accordance with law. All that that decision lays down is that in interpreting Rule 57 which in terms applies, to a case where on a petition which was ultimately dismissed an attachment had taken place, the words of the rule must be applied with caution in the case of an application filed after the decree to bring to sale property which was attached before judgment, and that where an order passed on such application was ambiguous in its terms the Court in order to consider whether the order was one of dismissal or not was entitled to take into consideration the circumstances leading to the order. As the case was one in which the petition was rejected for defects of the kind contemplated by Order 21, Rule 17, the learned Judges held that the disposal of the application in that particular case was not one of dismissal within the meaning of Order 21, Rule 57 and had not the effect of terminating the attachment. The decision was explained by the Full Bench in Seshagirirao v. Subbaramireddi (1945) 1 M.L.J. 370 : I.L.R. 1945 Mad. 684 in the same manner. The decision of Venkatasubba Rao, J., in Krishna Aiyangar v. Mohidin Sahib Rowther (1934) 40 L.W. 263 was also cited to show that it was open to the Court in a later proceeding to go into the question whether an earlier execution application was dismissed for default or not. We do not think however that this case is an authority for the position contended for. All that the case decided was where the Court dismissed an execution application and passed an order terminating the attachment behind the back of the decree-holder and without giving him an opportunity to be heard it was not a judicial order at all so as to bring about the penal consequences contemplated by Order 21, Rule 57. If the decree-holder were given an opportunity at the time the order was made it would have been perfectly open to-684 (F.B.) him to show that there was no negligence on his part and that it was a proper case. for adjourning it and not for dismissing it. The termination of the attachment by the Court without giving the decree-holder an opportunity to be heard was according to the learned Judge invalid and had no legal effect. We have therefore no hesitation in holding that the order on the first execution petition was one of dismissal for default of the decree-holder and that by reason of the dismissal the attachment of the property came to an end. The result is the mortgage in favour of the plaintiff was valid, and he had acquired a good title under the purchase in execution of the mortgage decree.

13. We have next to consider the contention urged on behalf of the respondent that the plaintiff is bound by the order passed by the District Munsiff in the second execution petition that the attachment had subsisted, which order was confirmed on appeal by the learned Subordinate Judge (vide Exs. D-1 and D-2). The plaintiff was not a party to those proceedings, and he acquired rights under the mortgage long before the commencement of the proceedings. The mortgage is dated 20th of August, 1937. The attachment before judgment was on 15th October, 1936. The first execution petition was filed on 26th October, 1938, and the second in the year 1939. If the attachment remained in force, under Section 64, Civil Procedure Code, it would have been open to the first defendant to contend that the transfer by the second defendant in favour of the plaintiff after the attachment would not affect his rights under the attachment. As the proceedings in which the subsistence of the attachment was established between the decree-holder and the judgment-debtor were initiated subsequent to the transfer in favour of the plaintiff, under ordinary circumstances the plaintiff would not be bound by the adjudication between the decree-holder and the judgment-debtor. This principle is not disputed, and indeed could not be disputed by Mr. Raghava Rao, the learned advocate for the respondent, in view of a long catena of decisions which had established the principle. The decisions are collected by Mullah in his commentary on Section 11, Civil Procedure Code, under the heading

The title by which the parties in the subsequent suit claimed must have arisen subsequently to the commencement of the former suit.

The contention however urged on behalf of the respondent was that notwithstanding the prior transfer by the judgment-debtor in favour of the plaintiff, the plaintiff transferee would be bound by an adjudication against the transferor, and that the transferor continued to represent the transferee also. At a later stage of the arguments Mr. Raghava Rao restricted the scope of his contention by confining it to execution proceedings, the modified contention being that when once a property was attached, and an alienation was made by the judgment-debtor after such attachment, the result of all proceedings taken by or against the judgment-debtor would equally bind such alienee. In support of this argument strong reliance was placed by him upon the decision of a Bench of this Court reported in Venkatachalapathirao v. Venkatappayya (1931) 62 M.L.J. 302 : I.L.R. 55 Mad. 495. It is necessary therefore to examine that decision to see whether there is any support in that decision for the position contended for by Mr. Raghava Rao. The facts of that case are somewhat complicated, but when once the facts are clearly understood, there is no difficulty in understanding the principle of that decision. One Venkatachalapathi obtained a money decree in O.S. No.. 38 of 1912 on the file of the District Munsiff's Court, Narasapur, against Venkataramanayya on 30th September, 1913. In execution of that decree an order for attachment of the judgment-debtor's property was passed on the 14th March, 1914.. In the meantime the judgment-debtor preferred an appeal against the decree and obtained an interim order for stay of execution from the appellate Court on 13th March, 1914. The order granting interim stay was received by the District Munsiff on the 16th March, 1914. The attachment of the property was effected in accordance with Order 21, Rule 54 on the 17th March, 1914. The interim order granting stay was vacated on 15th April, 1914, as the judgment-debtor failed to furnish security as directed by the appellate Court. On 27th May, 1914, the judgment-debtor sold the property attached to certain Gadiraju people. On 6th of October, 1914, the judgment-debtor filed an application under Section 47, Civil Procedure Code, in the execution proceedings alleging that the attachment of the property on 17th March, 1914, was ultra vires and illegal, and that the property could not be sold. The District Munsiff overruled the contention of the decree-holder that there was a valid attachment and directed the attachment to be raised and quashed all further proceedings. That order was confirmed on appeal by the Subordinate Judge. During the pendency of the appeal the judgment-debtor died, and his widow was brought on record as his legal representative.

14. Against the order of the learned Subordinate Judge the decree-holder preferred a civil miscellaneous second appeal to the High Court which was disposed of by a Full Bench in Venkatachalapathirao v. Kameswaramma : (1917)33MLJ515 . The Full Bench held,

Where subsequent to an 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.

After the Full Bench answered the question referred to it in the manner stated above the case came for final disposal before the Division Bench, and the Division Bench allowed the civil miscellaneous second appeal, dismissed the petition of the judgment-debtor filed under Section 47, Civil Procedure Code and restored the attachment which was raised by the District Munsiff.

15. On the 26th of August, 1918, the Gadiraju people filed a claim petition under Order 21, Rule 58, Civil Procedure Code, on the basis of their purchase to raise the attachment on the ground that there was no valid attachment of the properties on the date of their purchase. This petition was opposed by the decree-holder and was dismissed on 31st October, 1919. The vendees thereafter instituted the suit O.S. No. 142 of 1920, under Order 21, Rule 63 for setting aside the summary order dated 31st October, 1919. The questions raised in the suit were whether there was a valid attachment of the properties and whether the question was not res judicata by reason of the order passed by the High Court in the civil miscellaneous second appeal. The suit was dismissed by the District Munsiff and the Subordinate Judge on appeal. A second appeal to this Court was preferred by the vendee which came for hearing before Devadoss, J. He held that as the attachment was effected after the communication of the order to the District Munsiff's Court the attachment was invalid and that the decision of the High Court did not bind the vendees. The decision of Devadoss, J., is reported in Venkatappayya v. Venkatackalapathirao : AIR1927Mad450 . Against this decision there was a Letters Patent Appeal which came for hearing before Rcilly and Anantakrishna Ayyar, JJ. and they reversed the decision of Devadoss, J., and restored the decree of the District Munsiff dismissing the suit. The decision of the learned Judges is Venkatachalapathi Rao v. Venkatappayya (1930) 62 M.L.J. 302 : I.L.R. 55 Mad. 495.

16. The main ground on which the decision proceeded was that the purchasers, the Gadiraju people, were bound by the orders in the execution proceedings either on the doctrine of Us pendens or as persons who with knowledge of the proceedings purchased the property subject to the result of those proceedings. It is difficult to follow the view of the learned Judges that the doctrine of Us pendens applies to such a situation. The attachment of property does not create either a charge or a lien in favour of the attaching decree-holder and does not create any interest in immoveable property. It merely gives to the attaching decree-holder the right recognised in Section 64, Civil Procedure Code. The very foundation of the doctrine of Us pendens is a dispute in respect of a right to immoveable property. As this essential requisite is wanting in proceedings in which a property is attached, Mr. Raghava Rao, the learned advocate for the respondent, rightly conceded that he could not sustain the position that the principle of Us pendens applied to the facts of that case or the present. If that was the only point on which that decision rested it would have necessitated a reference to a Full Bench of the present case, as it is not open to us to differ from a Division Bench but that case is distinguishable from the facts of the present case in that the learned Judges confined the principle of the binding nature of the result of execution proceedings either on the principle of doctrine of Us pendens or otherwise, only to the particular execution proceeding during the pendency of which the property was transferred by the judgment-debtor notwithstanding the attachment of the said property in those proceedings. This is made clear in the judgment itself. At page 502 the learned Judges state the principle in these words:

In our opinion, when proceedings by way of attachment of immoveable 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 Court's decision as to the effect of the proceedings actually taken before his purchase. Such purchaser would be bound by the Court's 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 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 them 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 plaintiffs' purchase should prove abortive and infructuous, and the decree-holder had to take-entirely fresh execution proceedings after the plaintiffs' 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.

The last sentence in the above quotation makes it quite clear that if there were to be a fresh execution proceeding the adjudication in the earlier execution proceedings would not bind the purchaser unless he was made a party to it. It is unnecessary for us to consider whether even in the same execution proceedings if an order was passed against the judgment-debtor after he had parted with his interests in the property which was attached, the purchaser would be bound by such an order. It is enough for the purpose of the decision of this case to point out that in the present case the execution proceedings in which the decision in Exs. D-1 and D-2 was given were initiated long after the plaintiff obtained his mortgage. The plaintiff therefore would not be bound by the order in Exs. D-1 and D-2 and the principle of the decision does not apply.

17. Mr. Raghava Rao drew our attention to the decisions in Marayanaswami Naick v. Seshappier (1907) 17 M.L.J. 321 and Seetharaman v. Chidambaram : AIR1933Mad166 which held that an alienee of the property after attachment was a representative of the judgment-debtor within the meaning of Section 47, Civil Procedure Code. That is a proposition which cannot be disputed, but it does not help the respondent. Nobody doubts that in certain events a transferee from a judgment-debtor after attachment may be a ' representative ' of the judgment-debtor within the meaning of Section 47, but the question is whether he is bound by an adjudication against the judgment-debtor made in a proceeding initiated after the transfer in his favour was effected. We therefore disagree with the learned Subordinate Judge in his view that the plaintiff was bound by the decision in the second execution petition.

18. The result is that the decision of the learned Subordinate Judge on both the points is erroneous and must be set aside. The appeal is therefore allowed, the decree of the Subordinate Judge is set aside and that of the District Munsiff restored with costs here and in the Court below.


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