K SUBRAMANIA IYER Vs. OLAGANATHAN PILLAI

JUDGEMENT

(1.) THIS second appeal arises out of proceedings in execution of a decree in O. S. No. 12 of 1959 on the file of the Subordinate Judge's Court, Thanjavur, in so far as it related to costs of Rs. 5,080. 50. E. P. No. 42 of 1965 was filed by the two decree-holders, namely, K. Subramania Iyer and K. Gopalswamy Iyer. But K. Gopalswamy Iyer died, leaving as his legal representative G. Krishnamani. Because the legal representative had to be impleaded and the encumbrance certificates were not yet ready, on behalf of K. Subramania Iyer, the other decree-holder it was represented that the execution petition might be closed. order was accordingly passed by the executing court on 9-3-1965: "e. P. dismissed. Attachment to continue for three months. "

(2.) E. P. No. 480 of 1965 was filed on 14-6-1965 on the date of the reopening of the court after the summer recess, but without any prayer for fresh attachment. It was filed by K. Subramania Iyer and G. Krishnamani, the legal representative of the other decree-holder. In the meantime, on 30-5-1965 under Exhibit A-1, the property which had been attached in E. P. No. 42 of 1965, was purchased by one olaganatha Pillai from the judgment-debtor, Mariappa Maniagar; that is to say, by a private sale. The private purchaser, Olaganatha Pillai, filed E. A. No. 686 of 1966 for a declaration that the property which he had purchased was not liable for attachment and sale in execution of the decree. The contention was that the attachment ordered in E. P. No. 42 of 1965 had come to an end on 9-6-1965, that the next execution petition (E. P. No. 480 of 1965) was filed on 14-6-1965 without a prayer for fresh attachment, that consequently it was not maintainable, that there was no earlier attachment which could be availed of and that the sale on 305-1965 would therefore be valid against the decree-holder.

(3.) THIS application was resisted on the ground that by virtue of Section 64 of the civil Procedure Code, the purchase made on 30-5-1965 was void against the decree-holder because the order of attachment made in E. P. No. 42 of 1965 was subsisting on 30-5-1965. It was further urged that because the court was closed on 9-6-1965 (the date of the expiry of the period of three months form 9-3-1965)the earliest date on which the decree-holders could have filed the execution petition was 14-6-1965 and that, therefore, the execution petition was maintainable.