LINGA BHATTA ALIAS THAMMAIAH Vs. SARAVANA ENTERPRISES

JUDGEMENT

(1.) THE appeal arises out of the order passed in Misc. 89/87 filed in Ex. Case No. 51/86. The execution proceedings are pursuant to the decree passed in O. S. No. 65/88 of the file of the Civil Judge, mandya.

(2.) IT has been a torturous litigation for the parties and in particular to the appellants who are litigating as LRs. of the original plaintiff one Linga Bhatta. It appears that the original plaintiff has bountifully left a legacy of perennial litigation for his third generation. Be it as it may, this appeal poses an interesting question of law about the validity and effect of attachment of property in execution of a decree with reference to the provisions contained in Order 38, Rule 11 and Order 21, Rule 57, CPC.

(3.) THE original plaintiff successfully obtained a decree for recovery of money against the husband of the second respondent in a sum of Rs. 80,000/- and odd with costs and interest. The suit was decreed on 16-1 -1970, followed by an execution in Ex. Case No. 41 / 70 by the original plaintiff; successfully a sum of Rs. 75,000/- came to be recovered by sale of two properties. The execution petition was closed on 1-4-1972. However, the second respondent preferred an appeal against the judgment and decree in RFA 95/ 71. The appeal was dismissed on 26-2-1974. The legal representatives of the decree holder filed another execution case in Ex. No. 998/ 74 for recovery of the balance amount. The said application came to be disposed of on 30-5-1974 without any effective recovery of any part of the balance due. Again another execution petition was filed in Ex. No. 115/ 74 on 11-6-1974 which came to be dismissed for default on 9-2-1979. In the said proceedings also no amount was recovered. Thereafter the present execution case is filed on 24-2-1986. The first respondent filed an application under Order 21, Rule 58 challenging the attachment on the ground that the property belongs to him and cannot be subjected to execution for recovery of the monies due under the decree.