H BHAVARLAL Vs. VASUDEVA MOOTHAN

JUDGEMENT

(1.) The 1st defendant is the appellant. The suit is for declaration of the plaintiff's title to the suit property under a court sale held in E. P. No. 158 of 1965 in Small Cause Suit No. 398 of 1962 on the file of the Munsiff's Court, Palghat and for an injunction to restrain the 1st defendant from taking delivery of the property from the plaintiff, in pursuance to the order in E. A. No. 743 of 1968 in the aforesaid E. P.

(2.) The 1st defendant had filed O. S. No. 54 of 1956 on the file of the Sub Court, Bangalore and had obtained an order for attachment before judgment of the property involved in the suit. The plaintiff obtained a decree against the 2nd defendant in small cause suit No. 390 of 1962 on the file of the Munsiff's Court, Palghat. The suit property was brought to sale in E. P. No. 158 of 1965 in execution of the small cause decree and the decree holder-plaintiff purchased the property in the court auction sale held on 20-12-1965. Ext. A1 dated 14-10-1966 is the sale certificate issued to the plaintiff, on confirmation of the sale in his favour. As per Ext. A2 delivery account, the plaintiff took delivery of the property on 4-7-1968. The 1st defendant who had attached the property before judgment in O. S. No. 54 of 1956 obtained a decree in the suit against the 2nd defendant and in execution of the said decree the suit property was brought to sale and purchased by the 1st defendant on 5-12-1966. Ext. B2 dated 25-11-1967 is the sale certificate issued to the Ist defendant. He had taken delivery of the property as per Ext. B3 dated 19-1-1968. It was thereafter that the plaintiff took delivery of the property under Ext. A2. On the plaintiff taking delivery of the property, the 2nd defendant filed E. A. No. 743 of 1968 in E. P. No. 158 of 1965 of the Munsiff's Court, Palghat for re-delivery of the property to him on the ground that he bad obtained title to the property as per Ext. B2 sale certificate, and had also obtained delivery of possession of the same through court as per Ext. B3 deli" very account. The execution court dismissed E. A. No. 743 of 1968 as per Ext A4 order dated 3-9-1974.

(3.) This Court in CRP No. 805 of 1975 allowed redelivery of the property to the 2nd defendant subject to the plaintiff's right to establish his title and right to possession by a separate suit Ext A5 dated 8-9-1975 is the order of this Court in CRP No. 805 of 1975. It is thereafter that the plaintiff filed the present suit for declaration of his title and for injunction restraining the 2nd defendant from taking delivery of the property in pursuance to Ext. B2 sale certificate obtained by him in O.S.No 54 of 1956. The court below has decreed the suit declaring the plaintiff's title and granting an injunction against the 2nd defendant from taking delivery of the property from the plaintiff in pursuance to Ext. A5 order in CRP No. 805 of 1975. It is against this that the 1st defendant has come up in appeal.