G R RAMASETHU Vs. K R ATHAPPA CHETTIAR

JUDGEMENT

(1.) THE civil revision petition and the civil Miscellaneous appeal have been preferred by the decree-holder/ auction purchaser in o. S. No. 342 of 1971, Sub-Court, Madurai, against the order of the Court below in e. A. No. 1150 of 1981 in E. P. No. 164 of 1973 in O. S. No. 342 of 1971 filed by the first respondent herein under S. 47 and 0. 21, R. 90, Code of Civil Procedure, setting aside the court sale held on 3-9-1979 and confirmed on 3-11-1979.

(2.) BRIEFLY stated, the facts giving rise to these proceedings are as follows: The second respondent had borrowed moneys from the petitioner in the civil revision petition and the appellant in the civil miscellaneous appeal (hereinafter referred to as'the decree-holder') on a promissory note and for the recovery of the amounts due from the second respondent, the suit in O. S. 342 of 1971, sub-court, Madurai, was instituted. Even on the very day on which the suit was filed, an application in I. A. No. 555 of 1971 praying for an attachment of the property bearing door No. 146, North masi Street, Madurai, belonging to the second respondent herein, was made. On 9-8-1971 despite counsel taking notice on behalf of the second respondent, an order of interim attachment was passed in I. A. No. 555 of 1971. Pursuant to the order directing interim attachment, the attachment on the property was effected on 15-8-1971. After several adjournments, finally, on 21-4-1972, in I. A. No. 555 of 1971, the order of attachment passed earlier was made absolute. On 30-11-1972, a decree was also passed in O. S. No. 342 of 1971, Sub-Court, Madurai . While matters stood thus, the second respondent herein purported to sell the attached property on 9-2-1972 in favour of the first respondent herein and gave him possession by about February, 1973. The decree-holder executed the decree obtained by him in O. S. No. 342 of 1971 in E. P. No. 164 of 1973 and finally, after obtaining leave to bid and set off in E. A. No. 420 of 1979 purchased the property already attached by him in I. A. No. 555 of 1972 in the Court auction held on 3-9-1979. Subsequently, on 3-11-1979, the court sale in favour of the decree-holder was confirmed. Thereupon, the decree-holder/ auction purchaser applied for delivery of possession and owing to obstruction offered by the first respondent, proceedings were taken for the removal of obstruction and it was at that stage, on 31-3-1981, the first respondent herein filed E. A. No. 1150 of 1981 purporting to be under S. 47 and 0. 21, R. 90, Code of Civil Procedure, to set aside the Court sale in favour of the decree-holder /auction purchaser.

(3.) THERE is also a related aspect which has not been focussed upon by the Court below. If, as a result of the operation of S. 64, c. P. C, the decree-holder is entitled to treat the private alienation made by the second respondent in favour of the first respondent as void and proceed against the property as if it belonged to the second respondent, it would be difficult to regard the same transaction as a valid one in so far as the first respondent is concerned to sustain or maintain an application to set aside the court sale. The declaration of the void nature of the private transfer under s. 64, C. P. C. is with reference to all the claims enforceable under the decree in O. S. No. 342 of 1971. Those claims have been actually enforced by the sale of the property and purchased by the decree-holder in the Court auction sale. If the private alienation by the second respondent in favour of the first respondent is void under S. 64, C. P. C. for the purpose of enforcing the claims under the decree ir. O. S. No. 342 of 1971 culminating in the Court sale in favour of the decree-holder, it follows that even for other proceedings arising out of the claims enforced under the decree in O. S. No. 342 of 1971, the private sale in favour of the first respondent should still be treated as void. Otherwise, the results will be startling for, though with reference to enforcement of the claims under the decree in O. S. No. 342 of 1971, the private sale by the second respondent in favour of the first respondent would be void, it would be valid in order to enable the first respondent to claim some interest in the property sold in Court auction and on that footing, make an application for setting aside the sale. Thus, with reference to the enforcement of the claims arising under the decree in O. S. No. 342 of 1971, the sale under Exhibit A-5 cannot be void and valid at the same time between the decree-holder and the first respondent herein. When under S. 64, C. P. C. the private sale is declared void, that would ensure not only for the purpose of enabling the decree-holder to bring the property to sale in enforcement of the claims arising under the decree in O. S. No. 342 of 1971 but also for other matters arising out of the very same decree. If the private transfer by the second respondent in favour of the first respondent is void for purposes of enabling the decree-holder to enforce his claims under the decree in O. S. No. 342 of 1971 and such enforcement culminates in the court sale in favour of the decree-holder, even for purposes of setting aside the sale, the private sale in favour of the first respondent would still be void as the court sale sought to be set aside is only the outcome of claims enforceable under the decree in O. S. No. 342 of 1971 on the footing that the private sale is void. In that event, the first respondent cannot as against the decree-holder contend that he had acquired an interest in the property under the private transfer and as one interested in the property, as a representative of the judgment-debtor under S. 47, C. P. C, he can maintain an application either under S. 47 or even under 0. 21, R. 90, C. P. C. when the court sale in favour of the decree-holder had taken place on the footing that the private sale in favour of the first respondent by the second respondent was void, it follows that between the decree-holder and the first respondent, the legal effect of the private sale cannot be otherwise and it follows that under the private sale, the first respondent cannot claim that he is a representative of the second respondent, entitled to maintain the application, for, the effect of S. 64, C. P. C. is to still retain title to the property sold in court auction, in the judgment-debtor. In other words, the first respondent cannot, on the strength of the private sale declared void under S. 64, C. P. C. between the decree-holder and himself, claim that he is a representative of the judgment-debtor and maintain the application under S. 47, C. P. C. If the transaction is declared void under S. 64, C. P. C. for purposes of execution of the decree in O. S. No. 342 of 1971, it follows that the first respondent does not have any subsisting interest in the property as to enable him to maintain the application as a representative of the judgment-debtor within the meaning of s. 47, C. P. C. Viewed even as an application under O. 21, R. 90, C. P. C, the private sale under Exhibit A-5 would not clothe the first respondent with any interest in the property on the same parity of reasoning applicable to the consideration of the question of the first respondent being the representative of the judgment-debtor for purposes of maintaining the application under S. 47, C. P. C. and the first respondent cannot claim to be a person interested in the property so that even the application under O. 21, R. 90, C. P. C. cannot be maintained by him on the ground that his interests are affected by the Court sale. The Court below is, therefore, in error in holding that the application styled as one falling under S. 47 and O. 21, R. 90, C. P. C. was maintainable.