PAVAYAMMAL & ANR. Vs. MUTHUSAMY GOUNDER & ANR.

JUDGEMENT

(1.) The claimants in E.A. No. 164/82 in E.P. No. 451/81 in O.S. No. 1497/69 on the file of District Munsif Court, Bhavani are the appellants in the above appeal. The facts leading to the filing of the present appeal are briefly stated hereunder: - The 1st respondent herein filed the above said suit against the 2nd respondent. Pending disposal of the suit, in I.A. No. 2910/69 the 1st respondent obtained an order of attachment on 6.10.1971. Ultimately, the above said suit has been dismissed on 29.11.1972. The 1st appellant herein after dismissal of the suit, purchased item No. 1 of the suit property under Ex.A1 sale deed on 20.10.1972. The 2nd appellant purchased item Nos. 2 and 3 under Ex.A3 on 1.11.1972. The above mentioned two transactions under Ex.A1 and A3 were after dismissal of the suit. While such is the position, the 1st respondent whose suit has been dismissed, filed an appeal and the Appellate Court decreed the suit as prayed for. In pursuance of the appellate decree, the 1st respondent filed the said E.P. for realisation of the decree on the strength of attachment obtained by him pending disposal of the suit. Inasmuch as the appellants herein purchased suit items 1 to 3 after dismissal of the suit, in order to avert any order being passed in the Execution Petition they filed a Claim Petition in E.A. 164/82 before the District Munsif, Bhavani. They also claimed that they are in possession of the properties. On the other hand, the respondents herein filed counter -affidavit contending that in view of the decree in appeal, the attachment effected during the pendency of the suit continues even after dismissal of the suit, hence, the sale effected by the appellants under Ex.A1 and A3, is not valid and not binding. Hence, they prayed for dismissal of the claim petition filed by the appellants herein.

(2.) The 1st claimant was examined as P.W.1, and the 2nd Claimant was examined as P.W.2. They also examined two more witnesses viz., Muthu Gounder and Athiartna Gounder as P.W.3 and 4. The Claimants have also marked Ex.A1 to P9 in support of their plea. On the other hand, the 1st respondent alone was examined as R.W.1 and they have not marked any document in support of their defence.

(3.) The learned District Munsif, Bhavani on the basis of the oral and documentary evidence, relying on the decision of this Court rendered in 1984 M.L.J. 148 and after holding that after dismissal of the suit, the attachment granted pending suit could not endure, allowed the claim in so far as 1st item of the property and in other respects, dismissed the same.