SHIDRAMAPPA AYYAPPAGOUDA PATIL Vs. PARASURAMASING KARAKSING RAJPUT

JUDGEMENT

(1.) This appeal is by one Shidramappa Ayyappagouda Patil against the decree passed by the Civil Judge at Bijapur in R. A. No. 151 of 1966 confirming the decree passed by the Munsiff at Muddebihal in Darkhast No. 110 of 1961. One Parasuramasing Karaksing Raiput, respondent No. 1 herein instituted a Civil Suit No. 166 of 1954 to recover a certain sum of money from respondent No. 2 Chanbasappa Subbappa Patil. That suit was instituted in the Court of the Civil Judge Junior Division. Bijapur. Respondent No. 1 obtained an order of attachment before judgment in respect of the property in question from the Civil Judge Junior Division. Bijapur on the 9th of August, 1954. As the property belonging to respondent No. 2 was situate within the jurisdiction of the Court of the Civil Judge Junior Division. Muddebihal. appropriate steps had to be taken for effecting the attachment ordered by the Civil Judge Junior Division. Bijapur by his order dated the 9th of August 1954 as per the provisions of Section 136 of the Code of Civil Procedure. But it appears that the procedure prescribed under Section 136 of the Code of Civil Procedure was not strictly followed in this case and that the Civil Judge Junior Division, Bijapur did not send the order of attachment made by him to send the order of attachment made by him to the District Court, Bijapur as required by Section 136 of the Code of Civil Procedure. Instead, the learned Civil Judge Junior Division, Bijapur sent the order of attachment for being given effect to directly to the Court of the Civil Judge, Junior Division Muddebihal. It appears that the learned Civil Judge. Junior Division, Muddebihal within whose jurisdiction the property was situate, made the attachment as per the order of attachment dated the 9th of August, 1954 passed by the Civil Judge, Junior Division, Bijapur. After obtaining the decree, respondent No. 1 sought to brine the property attached to sale in execution of the decree obtained by him. The decree passed by the Court at Bijapur was got transferred to the Court of the Munsiff at Muddebihal for the purpose of execution. During the pendency of the execution proceedings, the present appellant Shidramappa Ayyappagouda Patil submitted a petition to the executing Court and inter alia contended that the decree-holder is not entitled to proceed against the property in question, as the suit property does not belong to the judgment-debtor but belongs to him. His contention was that he purchased the property in question under a sale deed dated the 21st day of March. 1959 executed by the judgment-debtor in his favour. But it was contended on behalf of the decree-holder that the sale in favour of Shidramappa Ayyappagouda Patil is void under Section 64 of the Code of Civil Procedure as the same was effected after the property was attached at the instance of the decree-holder Parasuramsingih Karaksingh Rajput. the original plaintiff. The appellant Shidramappa Ayyappagouda Patil contended that the decree-holder cannot place any reliance on Section 64 of the Code of Civil Procedure, as there was no valid attachment of the property on the date on which he purchased the same, namely, on the 21st of March, 1959.

(2.) The executing Court overruled the objections of the appellant and directed the execution to proceed. The said decision has been affirmed by the learned Civil Judge. Bijapur in R. A. No. 151 of 1966. Hence this Execution second appeal by Shidramappa Ayyappagouda Patil. Judgment debtor No. 2.

(3.) The only point for consideration in the appeal is, as to whether there was a valid and subsisting attachment of the property in question on 21-3-1959. the date on which the appellant purchased the property in question from respondent No. 2. If there was a valid and subsisting attachment on that date as contended by respondent No. 1. it is obvious that the appellant did not acquire any title to the property in question as the sale in his favour would be void under Section 64 of the Code of Civil Procedure. If there was no valid and subsisting attachment as contended by respondent No. 1 as on the 21st of March 1959. respondent No. 1 would be entitled to execute the decree and proceed against the property in question on the footing that the sale in favour of the appellant is void under Section 64 of the Code of Civil Procedure.