G. KANNAN Vs. D.P. SAMUEL AND ORS.

JUDGEMENT

(1.) THIS Civil Miscellaneous Appeal by the Claim petitioner is against the dismissal of his claim petition E.A.No. 50 of 1987 on 6.7.1989. The execution petition for attachment and sale of the property of the judgment -debtor for the realisation of the money decree against the judgment -debtor was dismissed on 7.10.1985 for default in not complying with certain returns and on 11.10.1985, the claim petitioner, who is none other than the brother's son of the judgment -debtor, had purchased the said property. There was attachment of the said property prior to the dismissal of the E.P. and on dismissal, the executing Court also expressly raised the said attachment. But, subsequently, on the judgment -creditor filing application to set aside the dismissal order, the E.P. was restored. On restoration, the executing Court also expressed that the attachment effected earlier revived. The Court below also held that the claim petitioner was not a bona fide purchaser and that he was also bound by an earlier order of this Court dated 19.9.1988 in C.R.P.No. 102 of 1987 holding such revival. The said C.R.P. was against the order in the same execution proceeding, reducing the upset price for the above said property. Therefore, the Court held that there was no merit in the claim of the petitioner and dismissed the said E.A. Against the said dismissed order, the petitioner has filed this C.M.A.

(2.) NOW , regarding the above said revival of attachment on the restoration of an Execution petition a Division Bench of this Court in Annapurna v. Lakshmana : AIR 1950 Mad 740 , which is also relied on by the Court below, holds that such revival takes place. In the said case, no doubt the dismissal of the E.P. was set aside on appeal. But the Bench observes that the said revival applies whether the restoration was, on appeal or otherwise. The actual observation of the Bench runs as follows:

(3.) THE learned Counsel for the petitioner no doubt cited the decision reported in Patringa Koer v. Madhavanand Ram, (1911)14 C.L.J.476, which no doubt holds that there is no such revival when the transferee is a bonafide third party purchaser, after the dismissal of the E.P. and before its restoration. But, I am bound by the above said Division Bench judgment of this Court. Further, referring to the above said Patringa Koer v. Madhavanand Ram, (1911) 14 C.L.J.476, the Supreme Court also observed in the above said Nancy John Lyndon v. Prabhati Lal Chowdhury : [1987] 3 SCR 1038 as follows: