PETA THALLAMMA Vs. PEDAMALLU GOPALAKRISHNA MURTHY

JUDGEMENT

(1.) This is an appeal filed against the judgment and decree dated 9th April 1991 in A.S.No.55 of 1986 on the file of the I Additional District Judge, East Godavari at Rajahmundry setting aside the judgment and decree dated 02-3-1985 in O.S.No.15 of 1981 on the file of the Subordinate Judge, Amalapuram. Defendants 3 and 4 in the suit filed this appeal. Reference to the parties will be made in the course of this judgment as they are arrayed in the trial Court.

(2.) Necessary facts for the disposal of this appeal are as follows: Rajani Silk Palace filed a suit in O.S.No.510 of 1976 on the file of II Additional District Munsif, Amalapuram against the 1st defendant and obtained a money decree. It sought for attachment before judgment of Ac.3.58 Cents of undivided half share of the 1st defendant in R.S.No.90/4 of K.Jagannadhapuram Village in Amalapuram Taluq. The attachment before judgment was ordered by the trial Court. It was effected on 15-10-1976. Subsequently, the attached property was brought to sale. The plaintiff purchased the said property in court auction on 25-06-1979. The sale was confirmed on 25-07-1979. Sale Certificate was granted in favour of the plaintiff by executing Court. The remaining half share in the plaint schedule property belongs to the 2nd defendant. Defendant 3 and 4 obtained separate registered sale deeds dated 26-12-1977 (Ex.B1) and Ex.B-2) from the 1stdefendant regarding different extents of land in R.S.No.90/4. The Plaintiff Filed the suit for partition and separate possession of half a share of 1st defendant purchased by him in court auction. Defendants 1 and 2 remained ex parte in the suit. They did not contest the suit. Defendants 3 and 4 alone contested the suit. Originally, they claimed that they purchased Ac.0.42 Cents and Ac.1.42 cents respectively under Exs.B1 and B2 sale deeds and took possession of the said property on the same day. Subsequently, they amended the written statement and pleaded that about 1 1/2 years prior to Exhibits B1 and B2, under agreements of sale they purchased the property in question and took possession there of and subsequently they obtained registered sale deeds Exs.B1 and B2. In Ex.B-1 and B-2, there was no reference to prior sale agreements. They claimed that they had no knowledge about attachment before judgment. They also denied that there was any at tachment of suit property. They claimed that they are bonafide purchasers for value and without notice of attachment and the attachment was not binding on them. According to them the sales in their favour are not void sales and those sales bind the plaintiff. On the basis of the pleadings of both the parties the trial Court settled appropriate issues for trial. The trial Court disbelieved the version of defendants 3 and 4 that about 1 1/2 years prior to Exs.B1 and B2 sale deeds they purchased the property under agreements of sale and took possession. The trial Court further held that the attachment was made, it was proclaimed at the attached property and in the village where the property was situate. It further held that the copy of order of attachment was not affixed in a conspicuous place in the office of the District Collector and therefore the attachment is void. Therefore, the trial Court held that the sale deeds Exs.B1 and B2 are not void. Accordingly, the trial Court dismissed the suit for partition. The plaintiff preferred an appeal against the judgment and decree of the trial Court. The appellate court concurred with the finding of the trial Court that the defendants 3 and 4 did not purchase the property under agreements of sale prior to Exs.B1 and B2 sale deeds. Regarding the attachment the lower appellate Court also held that copy of order of attachment was not affixed in the office of the District Collector. However, the lower appellate Court held that the said omission is an irregularity and the attachment is valid and binding on the defendants. Accordingly, the lower appellate Court set aside the judgment of the trial Court and decreed the suit of the plaintiff. In the suit plaintiff claimed past and future mesne profits. The lower appellate Court held that the plaintiff is entitled for future mesne profits only from the date of the suit. It gave liberty to the plaintiff to file a separate application for final decree for partition and for ascertainment of future mesne profits. Aggrieved by the judgment and decree of the Lower Appellate Court defendants 3 and 4 preferred the present appeal.

(3.) At the time of admission of this appeal the learned Admission Judge treated the following points formulated in the memorandum of grounds of appeal as substantial questions of law that arise for consideration in the present appeal. (i) Whether the order dated 15-10-76 was not void under Order 38, Rule 5 (4) C.P.C.? (ii) Whether the failure to affix the order of attachment in the office of the Collector does not render the attachment invalid? (iii) Whether Exs.B1 and B2 sale deeds will be void, even when the attachment was invalid for non-compliance with Order 21, Rule 54 (2) C.P.C.? (iv) Whether the court sale in execution at which the plaintiff purchased the suit property under Ex.A1 sale certificate, dated 25-7-79, was not void as the order dated 15-10-1976 attaching the property itself was void? Points: