AYYAPPAN Vs. PARIATHU

JUDGEMENT

(1.) THERE is a Division Bench ruling of the Travancore Cochin High Court,which is all on fours with the case before me;and I am inclined to apply that decision to this case.

(2.) THE Division Bench ruling is Mohammed Mastan Kunju Mohammed Abdul Khadar v .Mytheen Kunju Pakiru Mohammed 1956 K.L.T.343.In that case the execution peti­tion was filed on 14 th November 1953,wherein it was prayed that the property described in the schedule was to be attached and sold for recovering the decree in a small cause suit.The decree -holder filed an affidavit along with the petition stating that unless the decree was executed against immovable property,it was not possible to realise the amount.On 16 th November the court allowed attachment of immovable property.The judgment debtor then filed an application on 9 th January 1954 praying for payment in instalments,which was also allowed.The instalments were however not paid;and therefore,the attached property was brought to sale.On 25 th August 1954 the judgment debtor applied for stopping the sale on the ground that he was not able to pay the whole decree debt and that he would pay Rs.15 on that day.The court adjourned the sale to 3 rd September 1954 directing payment of the entire decree debt by that time.On that day the judgment debtor again applied for time,when he was directed to pay Rs.50 immediately.The deposit was not made.Therefore,the property was sold and the decree holder purchased it.The judgment debtor thereafter applied under O.21,R.89 of the Code of Civil Procedure for setting aside the sale;and pending that,he filed yet another application under R.90 for cancellation of the sale.In all these proceedings,the judgment debtor did not raise the question of jurisdiction,namely,that the Small Cause Court had no jurisdiction to attach and sell immovable property.In these circumstances,the Division Bench held that the prayer in the execution petition was,in effect,for transferring the decree from the small cause side to the civil side of the same court;and that the attachment and sale effected were only attachment and sale by that court in its exercise of civil jurisdiction and not of small cause jurisdiction.

(3.) IN the present case the position is stronger for the appellant,whose legal representatives are the persons now interested in the second appeal.The suit was filed on 30 th July 1951,before the Travancore Cochin Civil Courts Act was passed,which came only in December 1951.The decree was passed on 31 st October 1951,again before the said Civil Courts Act.The execution petition was filed on 24 th May 1952,and along with it C.M.P.No.6289 of 1952 was also filed,wherein a prayer was made for attaching the suit property.Thereafter,notice was issued to the judgment -debtors;and they refused to accept notice.Ultimately,C.M.P.No.6239 of 1952 was allowed on 19 th June 1952 and attachment was ordered.Again,notice of sale under O.21,R.64 was issued on 27 th August 1952,which also the judgment debtors refused to accept.Thereafter,the property came for sale on 24 th October 1952;but the sale was adjourn­ed to 8 th November 1952.On that day also the sale did not take place as the court did not sit.The sale came on 5 th November 1952,when the first judgment debtor applied for time and the counsel of the decree holder agreed,as a result of which the sale was adjourned to 22 nd November.In the meantime,the attached property was sold by private sale under Ext.D -3 to the defendant -res­pondent on 13 th November 1952.On 22 nd November the property was sold and purchased by the decree -holder,who obtained a sale certificate,Ext.P -2.The rights under Ext.P -2 were then assigned by the decree -holder to the plaintiff -appellant.Thus,the appellant is a third party.