MALUK MOHAMMED Vs. BOOTHALINGOM

JUDGEMENT

(1.) THE defendant is the appellant. THE plaintiff suit was one for redemption of a mortgage Ext. A dated 13. 1. 1089. He sought for redemption of 2/3rd of the property or in the alternative of the whole property. THE mortgaged property originally belonged to one Muthamma Bhagavathi ammal, a Nanjinad Vellala lady. On 13. 7. 1089 she and her son Adakalam Pillai executed the mortgage to one Kumaraswamy Pillai and the latter was thereafter in possession. Subsequent to this mortgage, Bhagavathi Ammal, her son and her daughter Muthamma partitioned their property and the equity of redemption of the mortgaged property was allotted to Muthamma. Muthamma is stated to have borrowed 1000 fanams from one Peeru Mohamed under a debt bond, Ext. B dated 26. 2. 1100. THE bond was assigned to one Subramonia Tharakanar under Ext. G and the latter obtained a decree against Muthamma in O. S. No. 1631 of 1100 of the munsiff's Court of Nagercoil. THE plaint property was attached before judgment in that case on 12. 11. 1100, pursuant to an order for attachment passed on 6. 11. 1100. When the properties were brought to sale, a daughter of Muthamma filed a suit to set aside the decree and execution proceedings on the ground that the debt was not binding on the tarwad and that the plaint property which was said to belong to tarawad could not be sold in execution. That suit was originally filed in the Munsiff's Court but was later transferred to the district Court where it was tried as O. S. No. 132 of 1103. THE suit was allowed in respect of 1/3rd of the property only. During the pendency of that suit, the execution of the decree in O. S. No. 1631 of 1100 had been stayed by an order of injunction. After the disposal of O. S. No. 132 of 1103, the decree-holder in o. S. No. 1631 of 1100 brought the property to sale again and purchased 2/3rd of the property on 22. 4. 1113. This sale was duly confirmed and Ext. O is the sale certificate. During the pendency of O. S. No. 1631 of 1100, Muthamma had sold the whole property to one Pana Chidambaram Pillai under Ext. IV dated 16. 8. 1101. By successive transfers Chidambaram Pillai's rights under Ext. IV became vested in the defendant who redeemed the whole mortgage. THE plaintiff purchased the equity of redemption from the decree-holder-auction-purchaser in o. S. No. 1631 of 1100 and instituted the suit for redemption of 2/3rd of the property or in the alternative of the whole property. THE contentions of the defendant who opposed redemption were that the debt under Ext. B was not binding on the sub-tarwad of Muthamma and that the attachment and execution proceedings in O. S. No. 1631 of 1100 were fraudulent and collusive and were not in accordance with law. It was therefore contended that the sale deed executed by Muthamma was valid and that the decree-holder-auction-purchaser under whom the plaintiff claims did not obtain valid title to the property. It was also contended that the defendant was a bona-fide purchaser for value and that his rights could not be affected by the court sale. THE trial court held that the attachment was valid and that the sale deed executed by Muthamma after the date of the attachment could not prevail over claims enforceable under the attachment. It was also held that the defendant was not entitled to plead that the debt bond was not binding on the sub-tarwad of Muthamma, in view of the decision in O. S. No. 132 of 1103. THE suit was accordingly decreed allowing the plaintiff to redeem 2/3rd of the property. This appeal has been preferred from this decree.

(2.) THE main point urged on behalf of the appellant is that there was no valid attachment in O. S. No. 1631 of 1100. It is useful in this connection to refer to the pleadings in the case. It was stated in paragraph 5 of the plaint that the plaintiff in O. S. No. 1631 of 1100 had applied for attachment before judgment of this property and that an order of attachment was passed on 6. 11. 1100 in pursuance to which the properties were attached on 6. 11. 1100. THE answer of the defendant is contained in paragraph 3 of the written statement which is extracted below: "the proceedings relating to the suit O. S. No. 1631 of 1100 and the attachment before judgment referred in para 5 of the plaint were collusive, fraudulent and invalid and not binding on the properties. This defendant does not admit that the attachment was valid or complete or in accordance with law". THE point pressed before the lower court as seen from the judgment was that the attachment was not properly effected by complying with the provisions in 0. 21 of the Code of Civil Procedure. Learned counsel for the appellant raised another ground also viz. , that it was not proved that there was a valid order of attachment. It was also contended that attachment was not effected according to the provisions of law regarding the same. THEse are the main points arising for decision in this case.

(3.) IT was also contended that the appellant was a bonafide purchaser for value without notice of the attachment and that his rights should therefore be protected. This question is quite irrelevant in view of our finding that the property was validly attached before the date of the transfer, under which the appellant claims. The question whether the debt bond executed by Muthammal was binding on her subtarwad was not pressed before us.