K HANUMANTHIAH SETTY AND SONS Vs. S RAMALINGAPPA

JUDGEMENT

(1.) These appeals are against the orders of the Subordinate Judge, Adoni in S. S. Nos. 26 and 31 to 34 of 1967 setting aside the orders of the District Munsif, Adoni dismissing E. A. Nos 3, 4, 5, 9, 10 and 18 of 1966 filed under Section 47 and 151 C. P. C., to declare the sale of the petition schedule lands in execution of the decree in O. S. No. 9 of 1962 as not valid as against the petitioners and to restrain the Ist respondent from taking delivery of the properties sold and to restrain the 2nd respondent from drawing the amounts deposited in Court in E. P. No. 219 of 1964.

(2.) O. S. No. 9 of 1962 on the file of the District Munsif, Adoni was filed by one Hanumanthaiah Setty & Sons, for the recovery of certain monies due on certain dealings. After filing the suit, in I. A. No. 20 of 1962. S. No. 157-B of an extent of Ac. 7-82 cents of land was attached before judgment. After contest, the suit was decreed on 12-3-1962. E. P. No. 219 of 1964 was filed and the attached properties were brought to sale. Ultimately they were sold on 19-2-1966 and the sales were confirmed on 24-3-66. Subsequent to the attachment before judgment certain items of attached properties were sold to a number of persons by the judgment-debtor on 7-6-1962, 8-6-1965 and 17-7-1965 and E. A. Nos. 3, 4, 5, 9, 10 and 18 of 1966 were filed by these purchasers under section 47 and 151 C. P. C. to declare that the sale of these properties in Court auction in E. P. NO. 219 of 1964 as not valid and to restrain the decree-holder, auction purchaser from taking delivery of the properties sold in auction and the 2nd respondent (judgment-debtor) from withdrawing the excess amount lying in deposit.

(3.) It was contended in these petitions that there was no publication in the village be beat of tom-tom, that the copy of the order of attachment was not affixed on a conspicuous part of the property or in the office of the Collector, Kurnool, that as such the attachment is not valid. It was also contended that the first E. P. No. 116 of 1962 having been dismissed, the attachment came to an end and as such the petition schedule land could not have been sold on he same attachment which was not subsisting, and as such the sale has to be declared as not valid. The Ist respondent (decree-holder-auction-purchaser) in his counter contended that the Court ordered attachment in I. A. No. 20 of 1962 on 4-1-1962 and the attachment was effected with notice to defendant and all formalities relating to attachment were complied with, the attachment was made absolute more than four years prior to the filing of these petitions, that the sale having been held on 19-2-1966 and subsequently confirmed on 24-3-1966, these petitions are barred by time, that the application under Section 47 and 151 C. P. C. are also not maintainable, that in the prior E. P. No. 116 of 1962, some monies were paid and the petition was closed and this does not amount to raising of attachment, that the petitions are therefore liable to be dismissed. The District Munsif, Adoni held that as in all these petitions the sale is attacked they come under Order 21 Rule 90 C. P. C. and it is old Article 166 (New 127) that applies and have to be filed within 30 days after the sale and these petitions not having been file within 30 days, are barred by time. He also held that if these are applications coming under Section 47 C. p. C., even then it is old Article 166 (New 127) that applies and these applications being beyond 30 days of the date of sale are barred by time and dismissed the petitions. On appeals filed by the petitioners, the Subordinate Judge found that these applications have been filed not for setting aside the sale but for a declaration that the sale is not valid and operative in law against the petitioners on the ground that there was no tom-tom in the illegal, that the other formalities envisaged under Order 21 Rule 54 or Order 38 Rule 5 C. P. C. have not been followed therefore these applications do not come within the ambit of Order 21 R. 89, 90 or 91 C. P. C. as those provisions relate to the setting aside of sales, that the petitions have been filed under Section 47 C. P. C. the petitioners being transferees of the property form the Judgment-debtors and hence his representatives and inasmuch as they are asking for a declaration of the sale to be not valid, old Article 166 (New 127) would not apply, that it is old Article 181 (New 137) which provides for 3 years limitation that would apply and the applications will therefore be in time. In this view, he set aside the order of the District Munsif, dismissing these petitions and directed further enquiry with regard to the irregularities complained of, regarding the attachment and remanded the petitions for disposal in accordance with law after giving both the parties, opportunity to adduce further evidence. hence these appeals.