MOHAMMED ALI NAYYAR Vs. AHRAZ HUSSAIN

JUDGEMENT

(1.) These three civil miscellaneous appeals under Order 43, Rule 1 read with Section 104 C.P.C. arise out of the proceedings initiated for execution of the decree in O.S. No.774 of 1994 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad. The appellants are third parties to the suit. The appellant in C.M.A.No.109 of 1996 and 1295 of 1999 is the father and the appellants in C.M.A.No.1104 of 1999 are his wife and son. For the sake of convenience, they are referred to as Appellants 1, 2 and 3 respectively. The first appellant and the second respondent are brothers. The first respondent in all the three appeals is the decree holder and the second respondent is the judgment-debtor.

(2.) The first respondent filed the suit against the second respondent for recovery of certain amount. Along with the suit, he filed IA. No.846 of 1994 under Order 38, Rule 5 C.P.C. and secured an attachment before judgment of a house bearing No.11-6-832, Red Hills, Hyderabad. The first appellant filed LA. No.874 of 1994 under Order 38, Rules 8 and 10 C.P.C. to raise the attachment. According to him, the property, comprising of cellar, ground, first and second floors, was owned by his father by name M.A. Shakoor. He stated that the ground floor was sold to him through sale deed dated 15.6.1991 and that on the same day, his father executed another sale deed in favour of the second appellant, transferring the first floor. It was further alleged that his father executed a Will dated 8.7.1992 bequeathing cellar and second floor of the building, in favour of the third appellant. M.A. Shakoor is said to have died on 24.6.1993. With these contentions, the first appellant pleaded that the attachment of the said property is without basis.

(3.) The suit was decreed ex parte on 10.8.1994. The application filed by the first appellant was dismissed on 5.12.1995. Against the same, C.M.A. No.109 of 1996 is filed. On the basis of the ex parte decree, the first respondent filed E.P. No.53 of 1995 and sought for sale of the attached property. At that stage, the first appellant filed E.A. No.153 of 1995 under Order 21, Rule 58 read with 151 C.P.C. This application was dismissed by the executing Court through its order dated 3.12.1998. Assailing the same, he filed C.M.A. No. 1295 of 1999. The first respondent filed E.P. No.107 of 1995 with a view to bring the other portions of the same building to sale. Appellants 2 and 3 filed E.A.No.263 of 1996 under Order 21, Rule 58 read with 151 C.P.C. The executing Court dismissed this application also through order dated 3.12.1998. This order gave rise to C.M.A. No.1104 of 1999.