BHIMAPPA GOLAPPA Vs. SILEMANSAHEB KASLMSAHEB

JUDGEMENT

(1.) This second appeal is by the legal representative of the original 3rd defendant against the decree passed by the Addl. Civil Judge, Bijapur, in R. A. No. 251 of 1968 modifying the decree passed by the court of the Addl. Munsiff, Bijapur, in CS.No.172 of 1965. The respondent instituted the suit for declaration cf title to the suit property and for possession of the same. The suit properties are portions of original S. No. 17 of Torvi Village which has been sub-divided into S. Ncs. 17/1 and 17|2.

(2.) The respondent filed SCS No. 295 of 1950 against Gurunath and obtained a money decree against him. After two infructuous execution proceedings, the respondent filed Darkhast No. 29 of 1961 and got the lands S. Nos. 17 and 18 attached on 10th April, 1961. These lands were sold in " execution of the decree and the respondent himself purchased the same en 4th June, 1962. As the application of the respondent to remove obstruction offered by Gurunath was dismissed, the plaintiff instituted the present suit within one year from the date of the dismissal of the said application. the suit was resisted so far as the land S. No. 17/2 with which alone we are concerned in this appeal on the ground that the same having been al'enated by Gurunath in favour of defendant-3 long before the same was attached in Darkhast No. 29 of 1961, no title has passed in favour of the respondent in respect of the land S. No. 17/2. The suit in respect of S. Nos. 17/1 arid 17/2 was dismissed by the court of first instance. As it is unnecessary I have not referred to facts pertaining to land S. No. 17/1. On appeal the learned Civil Judge has decreed the suit so far as land S. No. 17/2 is concerned. It is said decree that is challenged by the legal representative of defendant-3 in this second appeal.

(3.) The attachment was effected on 10-4-1961 and thereafter defendant-3 made an application on 16-8-1961, i.e., Misc. No. 67 of 1961 for raising the attachment. The said application made under Order 21 Rule 58 C.P.C. was net investigated on merits and came to be dismissed for default on 2nd February, 1962. It is after the dismissal of the said application that the land was sold on 4th June, 1962. The Court below has held that the order of 2nd Feby., 1962 dismissing the application of defendant-3 made under Or. 21 R. 58 of CPC. has become conclusive and that therefore defendant-3 is barred by Or. 21 R. 63 CPC. from asserting and establishing that he has title to the suit property and that the same has not passed in favour of the respondent.