SWAMY H.L. Vs. LAKSHMAMMA MAJOR AND OTHERS

JUDGEMENT

(1.) This appeal arises out of judgment and decree dated 19.9.2008, passed by the Court of Civil Judge (Sr.Dn.), and CJM, Mandya (henceforth for brevity referred to as "the First Appellate Court"), in Regular Appeal No. 68/2004, which appeal was instituted against an order dated 5.7.2004, on the application of the 1st respondent herein under Order XXI Rule 58 read with Section 151 of Code of Civil Procedure, 1908 (henceforth for brevity referred to as 'CPC') passed by the Prl. Civil judge (Jr.Dn.), Mandya, (henceforth for brevity referred to as "the Executing Court") in Execution No. 127/1999, on his file, rejecting the said application of the applicant.

(2.) The essential facts leading to the present appeal can succinctly be put thus : the appellant herein, who shall hereinafter be referred to as plaintiff/decree holder, in this judgment, laid a suit on 8.1.1992 in O.S. No. 41/1992, on the file of the trial Court for recovery of Rs. 26,800/- with interest, from 2nd and 3rd respondents herein, who shall hereinafter referred to as the judgment debtor Nos. 1 and 2 respectively, based on on-demand promissory notes dated 10.4.1991 and 6.7.1991. The plaintiff along with the suit, maintained an interlocutory application No. 1, filed under Order XXXVIII Rule 5 of CPC, praying for conditional attachment of suit schedule property before judgment. The trial Court on the date of institution of the suit i.e., on 8.1.1992, on the above application, passed conditional attachment order in respect of suit schedule property of the judgment debtors 1 and 2. The attachment order, as well suit summons were served on the judgment debtors 1 and 2, who are the husband and wife, on 10.1.1992. The judgment debtor No. 2 though claims to have executed an unregistered Sale Deed in favour of one Dorai Raj (RW-2) on 2.1.1992, but registered the said Sale Deed on 10.1.1992 (Ex.R-2), on which day, she received attachment order and summons from the trial Court. The suit of the plaintiff/decree holder was decreed on 31.3.1993 in O.S. No. 41/1992. The plaintiff/decree holder levied Execution No.312/1993, which was closed on 2.3.1996 for technical reasons. RW-2 Dorai Raj had executed Ex.R-3, a Sale Deed on 9.3.1994, in favour of the 1st respondent herein (applicant before the Executing Court-Smt.Lakshmamma). The plaintiff/decree holder levied another Execution No. 127/1999. The 1st respondent/applicant sought to release the suit schedule property from attachment in Execution No. 127/1999 through her application filed under Order XXI Rule 58 read with Section 151 of CPC, on 21.9.2000, which was numbered as IA.No. 4. In her IA. No. 4, the applicant (respondent No. 1 herein) had mainly contended that she was a bona fide purchaser of the suit schedule property and that the second execution petition of the plaintiff was not maintainable as it was levied after a lapse of six years from the date of disposal of the first execution petition and also that the decree holder had no right to bring the suit schedule property for the sale as attachment order was already ceased. The decree holder opposed the said application by filing his counter and contended that the judgment debtor No. 2 had no right to sell the suit schedule property who had sold the same on the very day of she receiving the attachment order of the property.

(3.) In the enquiry held by the Executing Court on the said application, the Power of Attorney Holder of decree holder stepped into the witness box as PW-1 and got marked four documents. The 1st respondent got examined her son and Power of Attorney Holder as RW-1 and her vendor Dorai Raj as RW-2 and got marked four documents. After hearing both side, the Executing Court by its order dated 5.7.2004, dismissed IA. No. 4 of the 1st respondent.