ERANAGA GOUNDER Vs. ALAGARSAMY

JUDGEMENT

(1.) THE appellant herein is the second defendant in O.S.No.1450 of 1980 on the file of District Munsif, Dindigul. THE first respondent herein filed the said suit for declaration of his title over the suit properties and for recovery of possession. His case is that the second respondent herein borrowed a sum of Rs.2,500 from him on 9.11.1956 on a promissory note. THE first respondent filed the suit O.S.402 of 1970 on the file, of the District Munsif, Dindigul against the second respondent for recovery of the said sum due on the promissory note. During the pendency of the said sum the first respondent filed I.A.No.674 of 1970 and obtained an order of attachment in respect of the suit properties on 31.3.1970. Ultimately the said suit was decreed and the first respondent filed E.P.No.357 of 1972 and brought the properties for sale. THE first respondent, after obtaining due permission from the Court, purchased the property in the Court auction sale held on 24.1.1973. Subsequent to the confirmation of the sale and the issue of sale certificate, the first respondent could not take possession of the property through execution, since he came to know that the appellant herein had purchased the property from the second respondent herein during the substance of the attachment order. Hence the present suit has been filed.

(2.) THE third respondent had been impleaded as a party, since the appellant had mortgaged the first item of the suit property and since the said mortgage is not binding on the first respondent.

(3.) MR.R.Subramaniam, the learned counsel for the appellant vehemently contended that the respondent herein being a party to the proceedings in O.S.No.402 of 1970 ought to have resorted to the procedure prescribed underO.21, Rule 95, C.P.C. to recover possession of the properties. As he failed to do so, the suit is barred in view of Sec.47, C.P.C. Hence the present suit filed by the first respondent is not maintainable. The Courts below have totally failed to consider this vital aspect.