SHIVAPADEGOWDA AND Vs. ANNIAHCHAR

JUDGEMENT

(1.) The property in respect of which disputes between the parties in this case arose belonged to one Chick Bommiah. He executed on 7-7-11 the original of Ext. G in favour of defendant 2 Chikmalliah concerning his properties, which I may here mention had been hypothecated by him to one Shiyaram Singh sometime before the execution of tins document. In pursuance of this document Chickmalliah executed the sale deeds exts. L, BBB, MM and MMM dated 28-8-41, 28-10-41, 4-11-41 and 3-9-42 respectively in order to discharge debts due by Chick Bommiah, as mentioned in Ext. G. To all these documents Chick Bommiah's attestation as evidence of his consent has been taken. In execution of a decree obtained by defendants 4 and 5 against the second defendant, all the properties of Chick Bommiah mentioned in Ext. G were attached and the suit property which is a dry garden land was purchased by the decree-holders as per sale certificate Ext. P. Plaintiff respondent has purchased the suit property from Defendants 4 and 5. Meanwhile Chick Bommiah filed a claim petition contending that Ext. G did not convey his interest in the properties to Chick Malliah and that he continued to be the owner of the properties. But the claim petition was dismissed for default. Subsequently the suit filed by him for setting aside this order was withdrawn with permission to file a fresh suit. But no such suit has since been shown to have been filed. The plaintiff-respondent is the purchaser of the suit property from defendants 4 and 5. After the claim case filed by Chick Bommiah was dismissed on 2-9-42, the second defendant Chick Malliah executed on 3-9-42 the sale deed Ext. 8 conveying the suit property to the first defendant, and it is the first defendant who is the first appellant in this case. Defendant 6 has purchased the properties mentioned in Ext. G other than the suit property from the second defendant's son the 3rd defendant in whose favour Chick Bommiah had executed Ext. I on 8-5-43 and the 6th defendant claims to have discharged the debts due by Chick Bommiah under the hypothecation deed executed by him in favour of Shiva-ram Singh.

(2.) The first contention raised by the first defendant who claims the property as having purchased it from the defendant is that the attachment of the suit property was not effective as a copy of the attachment warrant was not affixed on it and a copy of the warrant was not affixed to the Court notice board as required under Order 21, Rule 54, Civil P. C. On the other hand, it is contended that as a copy was affixed on one of the properties that were attached and all the properties including the suit property are in the same village, the requirements of the rule are satisfied. There is no evidence whether a copy of the warrant was affixed to the Court notice board, except for the fact that the Amin's report about it is silent. But these two defects, if they are defects, do not arise for consideration in this case as after the attachment and prior to the sale in favour of defendants 4 and 5, the suit property had not been conveyed by the judgment-debtor the second defendant in this case, to either the first defendant or any one else. By the time the second defendant executed the sale deed Ext. 8 on 3-9-42, the suit property had been sold away in execution of the decree and purchased by defendants 4 and 5 as per the sale certificate Ext. P on 28-7-42. It is no doubt true that the sale was confirmed after the date of the sale deed. But this by itself cannot help the first defendant as the sale was held actually prior to the date of Ext. 8. When the second defendant sold the property to the first defendant, long after 30 days had elapsed from the date of the Court sale, he had ceased to have any interest in the property. In fact, so far as he was concerned he had no right, at the time he sold the property, to question the sale on the ground that the attachment was defective and even if there was no attachment the sale is valid as against the judgment-debtor. I may here refer to the decision reported in -- '47 Mys HCR 372 (A)' in which it has been held that

(3.) The main contention of the appellant is that the property continued to belong to Chikka Bommiah even after he executed Ext. G which purports to be a will in favour of Chikkamalliah and the latter who was the judgment-debtor of defendants 4 and 5 had no title to the suit property when it was sold in execution of the decree against him. The objection of the respondent is that the appellant is not entitled to rely on the title of Chikka Bommiah to the suit property as Chick Bommiah had filed a claim petition & it was dismissed for default. The suit filed by Chick Bommiah within one year from that suit was subsequently withdrawn with permission to file a fresh suit and it is no doubt true that no fresh suit is shown to have been filed since then, and it may be taken that the dismissal of the claim petition has not been set aside in any subsequent suit. On the other hand, it is contended that as the claim petition was dismissed without investigation nothing comes in the way of Chick Bommiah or any person under him laying claim to the property or contending that Chick Bommiah continued to be the owner of the property till the time of his death. This contention is not without substance. It was held in -- '49 Mys HCR 275 (B)' that where a claim was dismissed for default the order of dismissal was not made as one after investigation and therefore Order 21, 63, Civil P. C, would not apply to the order and there would be no obligation on the part of the claimant to have that order set aside. That decision is fully applicable to the facts of this case. Therefore, since the claim petition was dismissed for default, it cannot be said that anything conies, in the way of Chick Bommiah's title being raised, in spite of his failure to get the order in the claim case set aside. It is no doubt true that the observations made in this case as regards suits filed under Order 21, Rule 103 read with Article 11(a) have not been followed, in the decision reported in -- 'Ramchandra Rao v. Subba Rao', AIR 1952 Mys 25 (C), but the actual decision in respect of Order 21, E. 63 which is the point under consideration is binding on this Court. It may be added, that it has been made clear in -- 'AIR 1952 Mys 25 (C)' that unless the words 'alter investigation' in Order 21, Rule 63 are deleted the intention of the Legislature in amending Article 11 by dropping the words 'after investigation' in it may not be said to have been achieved without doubt. When reference to the intention of the Legislature for amending Article 11 is referred to in that decision, it is done, in order to point out that the Legislature's attempt to avoid the distinction that arises by the presence of these words in Article 11 and the absence of the same in Article 11(a) shows that the absence of these words in Article 11(a) is significant. Similarly so long as these words are retained in Order 21, Rule 63 which bars a subsequent suit, it must be held that the bar in it only applies to cases in which the Court passes an order in claim cases after investigation. It is therefore open to appellant to contend that Ext. G executed by Chick Bommiah is a will and Chikkamalliah had no interest in the property till the latter died.