V. GOPI Vs. BHASKARAN AND ORS.

JUDGEMENT

(1.) Undermentioned legal questions arise in this original petition:

(2.) Conspectus of the facts: Petitioner is the plaintiff in O.S.No.36 of 1997 filed before the Court of Subordinate Judge, Hosdurg. The suit was one for recovery of a sum of Rs. 1,50,000/- from the second respondent (sole defendant). The plaint shows that what was claimed is only a personal decree against the defendant Pending the suit, the petitioner filed I.A.No.633 of 1997 under Order XXXVIII Rule 5 of the Code for attachment of defendant's property before judgment. The court passed an order on the application and the property was kept under attachment till the disposal of the suit. The trial court dismissed the suit after trial on 19.12.1998. Petitioner preferred an appeal against the judgment and decree of the trial court. The appeal was filed within time. In otherwords, there was no delay in filing the appeal. Along with the appeal, an application for attachment of property of the second respondent was also filed. Nevertheless, no order was passed by the appellate court on the application till the disposal of the appeal. After hearing both sides, the appellate court allowed the appeal and decreed the suit. Thereafter, the petitioner filed an execution petition praying for attachment and sale of the property, which was attached by the trial court pending suit. Although the second respondent filed a counter statement in the execution petition raising some objections, the executing court did not consider those objections and proceeded with the execution of decree upto the stage of settlement of proclamation. Then the first respondent filed an application under Section 151 of the Code seeking exemption of the property from sale as he claimed title over the property sought to be attached and sold. According to the first respondent, he is a bonafide purchaser of the property for value by a registered document dated 24.12.1999. Admittedly, the first respondent purchased the property from second respondent during pendency of the appeal. On the date when the first respondent purchased the property, there was no encumbrance or charge thereon. Although the petitioner had obtained an order of attachment before judgment in the suit, consequent to dismissal of the suit on 19.12.1998, the attachment order ceased to exist. As the petitioner was aware of this fact, he filed an application in the appeal for attachment. Fact that no order of attachment was passed by the appellate court is undisputed. Therefore, the first respondent, thinking that the second respondent was having a marketable title, purchased the property bonafide for value. These are the contentions raised by the first respondent.

(3.) Petitioner stiffly resisted the claims of the first respondent. Petitioner even challenged the maintainability of the petition. A stranger to the suit cannot invoke Section 151 of the Code, that too in execution proceedings. First respondent is not a bonafide purchaser of the property.