KUPPA KONAR Vs. PANCHAMI ASARI AND ANR.

JUDGEMENT

(1.) The appellant filed a suit in O.S. No. 870 of 1973 on the file of District Munsif Court, Kallakurichi which was subsequently transferred to District Munsif Court, Thirukkovilur and renumbered as O.S. No. 1007 of 1974. Pending suit the properties of the second respondent was attached in 1973 and the attachment was made absolute on 22.7.1973. The suit was decreed on 7.8.1978. Pursuant to the decree, E.P. was filed in the year 1979. Since part of the payment was made, the said E.P. was dismissed on 15.11.1979.

(2.) In the meanwhile the first respondent purchased the attached properties on 5.6.1980 and 27.6.1983. Thereafter the petitioner filed the present E.P. in 1983 to seal the property. In the meanwhile the first respondent filed E.A. No. 710 of 1984 to raise the attachment on the basis of his purchase of the properties. The trial court dismissed the petition insofar as it relates to half share and allowed the petition with respect to the another half share on the basis that judgment -debtor's son one Rajendiran is entitled to the same. Aggrieved against the same, the first respondent has filed an appeal A.S. No. 24 of 1989 on the file of Sub -Court, Cuddalore. The learned Subordinate Judge, accepting the case of the respondent allowed the appeal. Aggrieved against the same this appeal is filed.

(3.) The abovesaid facts are not in dispute. The Lower Appellate Court has allowed the appeal on the basis that as the E,P. was dismissed on 5.11.1979, the attachment effected deem to have been terminated as the Execution Court did not mention that such attachment will continue. So, since no attachment was there, the purchase of the first respondent cannot be questioned. On the date of the filing of the present E.P. the first respondent had become owner of the property and so it cannot be brought for sale. Admittedly the attachment was made in 1973. So under the provisions of the Code of Civil Procedure (Amendment) Act, 1976 the provisions of Order 21, Rule 57 as amended or as the case may be substituted or inserted to the Sec. 72 of the Act shall not apply to or affect any of the attachment subsisting immediately before the commencement of said Sec. 72. In view of the abovesaid specific provision we have to look into only the Order 21, Rule 57 unamended for the purpose of the present case. The unamended Rule 57 reads as follows: