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Cuddapara Anantarazu Garu and ors. Vs. Cuddapparazu Narayanarazu Garu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.96
AppellantCuddapara Anantarazu Garu and ors.
RespondentCuddapparazu Narayanarazu Garu and ors.
Cases ReferredNarasimha Row v. Ganga Ram
Excerpt:
limitation act (xv of 1877), schedule 77, article 120 - illegal attachment and sale--suit for restitution and, declaration--limitation--cause of action. - .....an invasion of the plaintiff's light and gave a cause of action for a declaratory suit, has, we think rightly, contended that the sale on the 30r.h june 190 5 was a fresh invasion of the plaintiff's right, and gave afresh cause of action. the district judge has referred to a second attachment, but apparently the first attachment was not discharged, and the advocate-general does not base his argument on any allegation that the sale was not in pursuance of the original attachment of the 29th november 1898, nor is it contended that the attachment is a continuing wrong, but we think that the sale ought properly to be regarded as a fresh and greater invasion of the plaintiff's right so as to give a fresh cause of action. the sale, though held is pursuance of the attachment, was not a.....
Judgment:

1. We think that the decree of the lower Appellate Court cannot be sustained. The learned Advocate-General for the appellant, though admit tin? that the attachment of 29th November 1393 was an invasion of the plaintiff's light and gave a cause of action for a declaratory suit, has, we think rightly, contended that the sale on the 30r.h June 190 5 was a fresh invasion of the plaintiff's right, and gave afresh cause of action. The District Judge has referred to a second attachment, but apparently the first attachment was not discharged, and the Advocate-General does not base his argument on any allegation that the sale was not in pursuance of the original attachment of the 29th November 1898, nor is it contended that the attachment is a continuing wrong, but we think that the sale ought properly to be regarded as a fresh and greater invasion of the plaintiff's right so as to give a fresh cause of action. The sale, though held is pursuance of the attachment, was not a necessary consequence of it. The plaintiffs, no doubt, might then have sued, but we do not think they were bound to sue. See Robert Skinner v. Shankar Lal 31 A.P 10 : 5 A.L.J. 638 : 1 Ind. Cas. 556. The attachment gives the judgment-creditor certain right in execution, but the title to the property continues in the owner notwithstanding the attachment and it so continues even if the owner's objection to the attachment be disallowed. Narasimha Row v. Ganga Ram 18 M.L.J. 590 : 4 M.L.T. 271. But when a sale takes place and is confirmed, the title passes to the purchaser from the date of the sale (Section 65, Civil Procedure Code). The owner's title is attested by a sale in an altogether different and greater degree than it is by an attachment. We think this gives the owner of the property a fresh cause of action. In the present case, the suit was brought within 6 years from the date of sale, and was, therefore, not barred by Article 120, Schedule II of the Limitation Act of 1377.

2. We must, therefore, set aside the decree of the District Judge, and direct him to restore the appeal to his file and dispose of it according to law.

3. The costs in this appeal will abide and follow the result.


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