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Sivakolundu Pillai Vs. Ganapathy Iyer and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.964
AppellantSivakolundu Pillai
RespondentGanapathy Iyer and ors.
Cases ReferredKhan v. Muhammad Asghar Ali Khan
Excerpt:
civil procedure code (act v of 1808), section 99, order xxi, rules 54 (g), 89, 90, 91, 92 - execution of decree--sale order for, without prior attachment-irregularity--appeal, sale held during pendency of-loss or prejudice to party, absence of-appellate court, duty of. - - 4.it was next argued that we should take no notice of what happened after the date of the subordinate judge's order appealed against, but set it aside if we think it erroneous and leave the parties to take such further steps as they liked......application for execution of the decree in original suit no. 23 of 1901 in plaintiffs favour, by sale of defendants' immoveable properties. among other objections which are not now material, defendants contended that the properties could be not sold without a fresh attachment as the attachment made in the previous execution application was no longer subsisting. plaintiffs contended that it was, and the subordinate judge agreeing with that contention directed the sale of the properties without a fresh attachment. the defendants appealed to this court against that order; the learned judge who heard the appeal dismissed it, on the ground that the existence of a subsisting attachment was res judicata between the parties by reason of a previous order by the subordinate judge. the letters.....
Judgment:

Krishnan, J.

1. This appeal arises from an application for execution of the decree in Original Suit No. 23 of 1901 in plaintiffs favour, by sale of defendants' immoveable properties. Among other objections which are not now material, defendants contended that the properties could be not sold without a fresh attachment as the attachment made in the previous execution application was no longer subsisting. Plaintiffs contended that it was, and the Subordinate Judge agreeing with that contention directed the sale of the properties without a fresh attachment. The defendants appealed to this Court against that order; the learned Judge who heard the appeal dismissed it, on the ground that the existence of a subsisting attachment was res judicata between the parties by reason of a previous order by the Subordinate Judge. The Letters Patent Appeal before us is against that judgment.

2. The appellants contend that there was no subsisting attachment in fact and that the question is not res judicata as the previous order relied on by the learned Judge did not decide anything about it. Respondents have tried to support the view taken on both these points and have urged in addition that even if we thought that these two points were wrongly decided and that there was no proper attachment, we should not interfere on that ground as the sale ordered has been carried out, and the Subordinate Court, rejecting the application by the first defendant to set it aside for irregularity, has confirmed it under Order XXI, Rule 92, and it has now become absolute, These facts have been proved before us by affidavit and the defendants do not deny them but merely state that the decree-holders themselves are the purchasers.

3.It is not denied that the sale can no longer be set aside for any irregularity in its conduct, however material it may be, but it is urged that the absence of attachment is not a mere irregularity but one that affects the jurisdiction of the executing Court to sell immoveable property. It has been held in Sheodhyan v. Bholanath (1899) A.W.N. 84. that it is only an irregularity; I entirely agree with the view expressed there and with the observations of the learned Judges as to the object of attachment. Attachment is only a step to be taken by the executing Court in bringing to sale the properties of a judgment-debtor. If such a step is omitted the sale can be set aside only if it has resulted in substantial loss, and once the sale is confirmed the objection can no longer be urged.

4.It was next argued that we should take no notice of what happened after the date of the Subordinate Judge's order appealed against, but set it aside if we think it erroneous and leave the parties to take such further steps as they liked. I do not think it right to do so when we know that the proceedings in execution have reached a stage where the objection regarding want of attachment is no longer material and will not affect the concluded sale. It seems to me that Section 99, Civil Procedure Code, shows the principle to be adopted in appeals; and we should not reverse the order of the first Court on a point which is of no importance now and which does not affect the merits of the case. The learned Vakil for the appellants has cited the observations at the end of the judgment of Chitty, J., in Nomuna Bibi v. Hoshun Meah 9 Ind. Cas. 558. as in his favour. The question, however, does not seem to have been fully argued before the learned Judges as there is no reference to it in the judgment of Coxe, J, at all. With all respect to the learned Judge, I am unable to follow his view. The decision of the Privy Council in Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan 10 A. s166 also cited for the appellants, has no application, as that was a case where the decree itself in execution of which the sale took place had been subsequently modified; the sale there was thus an incompetent sale and could be upheld only in favour of strangers purchasers not parties to the decree. In the case before us, the absence of attachment did not invalidate the sale without loss being proved; and that question has now been settled against the defendants by the rejection of their application under Order XXI, Rule 90. The fact, therefore, that the plaintiffs-decree-holders were themselves the purchasers here, is of no importance; the sale in their favour has been confirmed and is valid.

5.I am, therefore, of opinion that the defendants' appeal fails on the last ground urged by the respondents' Vakil and it is not necessary for us to consider the correctness of the first two points argued. I will dismiss the appeal with costs of first respondent.


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