VENKATARATNAMMA Vs. M VEERA REDDY

JUDGEMENT

(1.) The petitioner is the wife of the judgment-debtor Admittedly inA.S. 67/74 a compromise was effected in this Court under which the value of 40 bags of paddy was directed to be paid to the respondent. In execution thereof the respondent filed E.P. 17/77 attaching S. Nos 271 and 272 and other lands for realisation of the decree debt. While the attachment was subsisting the petitioner obtained a gift deed on 5-11-80. Subsequently the E.P. was dismissed for default on Sept. 22, 1983. Another E.P. 11/84 was filed. In execution thereof, the property was sold in the Court auction on December, 14, 1987. To set aside the sale, the petitioner filed an application under Order 21, Rule 90 CPC contending that the lands to the extent of 11/2 acres covered by the gift deed out of the lands bearing S. Nos. 271 and 272 are not liable to be sold, that as on the date when the lands were sold, the petitioner was an absolute owner having obtained under a gift deed dt. Nov. 5, 1980 an extent of 11/2 acres covered by the above survey numbers and that therefore there was DO attachment subsisting as on that date. Therefore, the judgment-debtor ceased to have any right and title to that property. On the other hand, the petitioner has a right, title and interest in that property. Therefore, the property is not liable to be attached. The question therefore is whether the property now sold, namely and extent of 11/2 acres of land in Sy. Nos. 271 and 272 obtained under a gift deed from the judgment-debtor on November 5, 1980, is liable to be attached and sold.

(2.) Admittedly, as on the date of the gift deed, the attachment wassubsisting. Therefore, when the petitioner has taken the gift dead, it is subject to the encumbrances. The mere fact that subsequsntly the E P. was dismissed for default does not mean that the land was free from encumbrances. The encumbrances which were attached to the lands gifted over would continue to subsist and therefore the subsequent attachment and sale is also a valid one and thereby the petitioner did no' acquire absolute right, title and interest to the properly. The title acquired under the gift deed is subject to the attachment which was suffering on the date of the gift deed. Thereby, the sale is perfectly valid

(3.) The ratio in Ramayya vs. Namayya is of little assistance. Therein,the property of the judgment-debtor was attached by two decree-holders. In the first instance, the first decree-holder has attached the property belonging to his judgment-debtor in execution of his decree and the purchaser has paid ihat amount and the judgment-debtor obtained clearance of the attachment and thereby it has become free from encumbrances. The second decresholder sought to attach the same property. In view of the fact that the first decree holder has already satisfied his debt and the property became free from all encumbrances, the second decree-holder cannot attach the same properly. The ratio there in is clealy inapplicable to the facts in this case.