NANJAPPA GOUNDER GOBICHETTIPALAYAM Vs. N SUBRAMANIAM PERIYAR DISTRICT

JUDGEMENT

(1.) THIS Second Appeal is preferred against the judgment and decree, dated 31.1.1996, passed in A.S.No.105 of 1991 on the file of Subordinate Judge, Gobichettipalayam reversing the judgment and decree, dated 18.12.1990, made in O.S.No.682 of 1985 on the file of Additional District Munsif, Gobichettipalayam. The plaintiff is the appellant herein.

(2.) THE appellant filed the suit seeking for a decree declaring his title to the suit properties and for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit properties.THE case of the plaintiff is that he entered into an agreement of sale with the second defendant on 25.8.1978 to purchase the suit properties and took possession of the same on the same date and the second defendant executed a sale deed on 29.11.1978 and completed the contract and the sale relates back to the date of agreement since the plaintiff was put in possession on the said date. It is further stated by the plaintiff that the first defendant appears to have brought the suit properties for sale in execution of the decree he obtained against the second defendant and the plaintiff was not aware of any attachment over the suit properties and the attachment said to have been made is not binding on the plaintiff since he is a bonafide purchaser for value and the auction sale in favour of the third defendant is not valid in law. THE plaintiff has further stated that he filed a claim application in the Execution Petition and the Execution Petition itself was dismissed for default and the Executing Court has no legal authority to restore it and the order of restoration without notice to the real owner is bad in law and it is not binding on the plaintiff and the second defendant has no subsisting title on the date of attachment also and the third defendant cannot claim any better title to the suit properties and the plaintiff is in possession of the suit properties and the defendants 1 and 3 are attempting to interfere with his possession and hence the suit is filed.

(3.) IN this Second Appeal, the following substantial questions of law are framed for consideration:1. Whether the lower appellate Court has erred in overlooking that the agreement for sale would prevail over attachment as the contractual obligation arising from the sale agreement would override the rights of the attaching creditor. 2.Whether in law the lower appellate Court was not wrong in finding that the suit was not maintainable.