VADAMI BAI Vs. SHAIK HUSSAIN

JUDGEMENT

(1.) Sha Nemaji Champalal (1st defendant) obtained an ex parte decree against the deceased Shaik Subhani, the husband of the 3rd defendant and father of defendants 4 to 7 in Small Cause Suit No 729/1965 on the file of the District Munsifs Court, Guntur. In execution of that decree, he brought the plaint schedule house for sale in E. P. No. 568/1969, stating that it belonged to the deceased Sheik Subhani. The plaintiff filed a Claim Petition to 27th June, 1970. Both the petitions were adjourned to 30/06/1970. On 27/06/1970, the sale was held and the property was purchased by Vadambi Bai (8th defendant). On 30/06/1970 both the claim petition and the adjournment petition were dismissed. Then the plaintiff filed the suit O.S. No. 818/1970 in the Court of the District Munsif. Guntur, on 17/08/1970 under O. 21, Rule 63, C. P. C. to set aside the order dated 30/06/1970 in the claim petition. he did not make the auction purchaser a party to that suit. He impleaded only the decree holder and the judgment debtor. On 25/11/1970 the sale was confirmed. On 21/10/1971 a petition was filed to implead the auction purchaser as a defendant to the suit, and it was allowed on 7/02/1972, subject to the plea of limitation. In the suit the District Munsif, Guntur, held that the plaintiff had title to 2/7th share in the plaint schedule property. Questioning that order the defendants 1 and 8, that is, the decree holder and the auction purchaser, filed appeal. A. S. No. 29/74 in the Court of the District Judge, Guntur. The learned Judge dismissed the appeal. he held that the suit was a continuation of the claim petition, that the auction purchaser acquired title to the suit property only when the sale was confirmed and, therefore, he was not a necessary party to the suit when it was filed. he also held that the auction purchaser was a transferee pendente lite under Section 52 of the Transfer of Property Act, and since the judgment debtor was already impleaded as a party to the suit, there was no question of any independent claim against the auction purchaser and hence the suit against him was not barred by limitation. hence this second appeal by the auction purchaser (8th defendant).

(2.) First, it came up before Muktadar J., for hearing. The learned Judge referred the matter to a Division Bench.

(3.) In this appeal it is submitted by Sri. P. L. Narasimha Sarma, the learned counsel for the appellant, that the confirmation of sale on 25/11/1970 relates back to the date of the sale on 27/06/1970 and, therefore, the auction purchaser got title to the suit property on 27/06/1970 and, consequently, became a necessary party to the suit, that the judgment debtor cannot represent her because he had been divested of his title and hence the suit as against the auction purchaser is barred by limitation. Secondly, he submitted that the finding of the lower Court that the sale to the auction purchaser was hit by lis pendents is not correct, for the claim suit is not a continuation of the claim petition and Section 52 of the Transfer of Property Act has no application to court sales.