PENTAPATI VENKATA SURYAPRAKASA RAO Vs. ABDULLAH SAHEB

JUDGEMENT

(1.) This civil miscellaneous second appeal has been placed before a Bench by our learned brother Bhimasankaram J. as, in his opinion, it involved two questions of law, namely (1) as to the interpretation of Section 47 C. P. C. and (2) as to the effect of an attachment on a partition suit subsequently filed.

(2.) The short facts of the case leading up to these questions are these. The first respondent, an endorsee of a promissory note made by a Hindu father obtained a decree on the foot of that note in O. S. No. 54 of 1937 (D. M. C. Eluru) against him. Originally, he impleaded the sons, who are the appellants before us, as well as the grandsons of the maker of the note as defendants 2 to 5. But before the decree was passed, he gave them up with the result that the suit was dismissed against them and judgment was entered only against the father, the first defendant, on 24-1-1938. In execution of that decree, the first respondent attached the family property in dispute and ultimately brought it to sale. Pending the attachment, the sons, i.e., the appellants before us, had filed a suit for partition and obtained a decree on 16-9-1950. However, the execution proceedings continued and the property was sold and purchased by the second respondent.

(3.) The present appellants filed an application (E. A. No. 554 of 1950 in Subordinate Judges Court Eluru) objecting to the order for sale of the property on the ground that they had a two-third share in the property attached and consequently the first respondent, who had obtained a decree only against the father, could not proceed against their interest in the property. As subsequent to the application the property was actually purchased by the second respondent, by a petition filed under Section 47 C. P. C. the prayer was amended by inserting in the application the relief for a declaration that they were entitled to a two-third share. To this petition the auction-purchaser was implicated as the second respondent. The respondents raised a plea relating to the maintainability of the petition but this was overruled and the matter was decided on the merits. It was held by the trial Court as well as the lower appellate Court that the partition, having been effected subsequent to the attachment, was ineffectual against the execution proceedings and it was, therefore, open to the first respondent to bring the property to sale. In the result, the petition was dismissed by the Courts below.