ANTONETA CICILIA FERNANDES Vs. RITA MARIA FERNANDES

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned Civil Judge, Senior Division, Margao, dated 30th August, 1994, in Special Execution Application No. 2/91/a whereby the learned Judge has rejected, on remand made by this Court in First Appeal No. 40/94 on 20th June, 1994, the appellants application for setting aside the attachment and sale made of certain properties purportedly belonging to the appellant and her husband in execution application filed by the respondent No. 1 decree-holder against the respondents No. 2 and 3, the judgment-debtors.

(2.) IT is not necessary to recapitulate all the facts in this case and suffice is to say that the respondent No. 1 upon securing a decree of the learned Civil Judge, Senior Division, Margao, against respondent No. 3s firm, consequent upon an arbitration award which was made the rule of the Court, sought to execute the same against the assets of one of its partners, the husband of the appellant. As a result two flats and two shops from the building known as "nascimento Anna Piedade Mansion" belonging to the appellants husband Jose Remedios Fernandes situated in the property Malbhat of Margao were attached and put to auction for the purpose of their sale in order to guarantee with their proceeds the satisfaction of the aforesaid decree. The appellant by alleging that she was the wife of the partner married to him under the regime of communion of assets and as such entitled to the right of moiety in the common properties of the couple objected to the attachment as being null and void in view of the clear provision of Article 1114 of the Portuguese Civil Code. The executing Court however was not impressed with this attempt of the appellant to release the attachment even after holding an inquiry under Order XXI, Rule 58 of the Civil Procedure Code as directed by this Court in First Appeal No. 40 of 1994 and ultimately came to negativate the appellants move by the impugned order which is under challenge.

(3.) WE have heard learned Counsel and also gone through the impugned order and though we agree with the finding arrived at by the learned Civil Judge we are unable to share the reasoning on which the learned Judge chose to support his decision. We nevertheless hold that the impugned order need not however be disturbed although for reasons entirely different from the ones adopted by the learned Civil Judge.