MAKKENA CHIMPIRAMMA Vs. PABBISETTY SUBRAHMANYAM

JUDGEMENT

(1.) This is a Letters Patent Appeal against the Judgment of Panchapagesa Sastri, J., dismissing the appeal filed against the judgment of the learned Subordinate Judge of Bapatla confirming that of the District Munsif of Ongole in a suit for declaration and injunction, or in the alternative, for possession. The 1st defendant obtained a decree against the 2nd defendant in Small Cause Suit No. 617 of 1936 on the file of the District Munsif's Court, Ongole. In execution of that decree the plaint schedule property was attached and brought to sale. Before the sale, the 3rd defendant preferred a claim petition E.A. No. 787 of 1941 setting up title to the same. Though the judgment-debtor was made a party to the application, no notice was taken to him. Arguments in the claim petition were heard on 21st July, 1941, but orders were pronounced only on 25th July, 1941, allowing the claim. On 2 1st July, 1941, notwithstanding the pendency of the claim petition, the auction sale was held and the 1st plaintiff purchased the property.

(2.) On igth August, 1941, the 3rd defendant filed an application under section 151, Civil Procedure Code, praying that the sale may be cancelled but that was dismissed by the learned District Munsif on the ground that it was not maintainable under Order 21, rules 89 to 91, Civil Procedure Code. Again on 8th January, 1942, the 3rd defendant filed another petition requesting the Court not to confirm the sale but that was also dismissed on 26th January, 1942. After the auction-purchaser had taken delivery of possession, the 3rd defendant filed another application under Order 21, rule 100, Civil Procedure Code, praying that the Court should not record the delivery said to have been effected or that it should direct re-delivery of the property to the 3rd defendant if the property was found to have been delivered to he auction-purchaser. That petition was dismissed on the ground that, on the allegations in the petition, it was not maintainable. Thereafter, on 25th Octobe , 1943, that 1st plaintiff and his lessee the 2nd plaintiff filed the aforesaid suit for declaration of the 1st plaintiff's title and for an injunction against the 3rd defendant and others.

(3.) The Courts below held that the order on the claim petition would not debar the 1st plaintiff from setting up his title based on the Court sale as the judgment debtor was not a party to the claim. This conclusion was arrived at on the ground that the auction-purchaser was only the representative of the judgment-debtor and that when the judgment-debtor himself, not being a party to the claim order was not bound by it, his representative also could not equally be bound by it.