NANDIPALLI APPALARAJU Vs. G PANNALAL SOWCAR

JUDGEMENT

(1.) The appellant in both these appeals seeks to challenge the affirming common judgment of a learned single Judge of this Court in First Appeals Nos. 65 and 66 of 1977. The said First Appeals were directed against a common judgment in Title Suits Nos. 71 and 72 of 1964. First Appeal No. 65 of 1967 arose out of Title Suit No. 72 of 1964 while First Appeal No. 66 of 1967 was out of Title Suit No. 71 of 1964-

(2.) The short facts are the following : One Pannalal Sowcar carried on business in the name and style of "Baughmal Pannalal Sowcar". He obtained a money decree against defendants 2 to 13 of Title Suit No. 71 of 1964 and levied execution of the said decree in E. P. No. 4 of 1958 in the court of the Subordinate Judge, Jeypore. In execution, he brought the disputed properties of Title Suit No-71 of 1964 under attachment by contending that these properties belonged to the judgment-debtors. One Lakshmanrao, plaintiff in Title Suit No. 72 of 1964, also obtained a money decree against defendants 1 to 8 of that suit and raised execution in E. P. No. 1 of 1968 against the judgment-debtors. The decree-holder brought the disputed properties of Title Suit No. 72 of 1964 under attachment. While these execution cases were pending and attachment of properties had been effected, Appalaraju, defendant No. 1 in Title Suit No. 71 of 1964 and defendant No. 9 in Title Suit No. 72 of 1964, preferred two claim petitions in the corresponding execution cases on the footing that the properties had been purchased by him in a sale held under the Madras Revenue Recovery Act for realisation of arrears of sales tax dues outstanding against the judgment-debtors who were defendants 2 to 13 in Title Suit No. 71 of 1964, some of whom were also defendants 1 to 8 in Title Suit No. 72 of 1964. The auction-purchaser maintained that the sale in his favour had been duly confirmed; the sale certificate had been issued and possession had been made over through court and he was hi possession and enjoyment of the properties as absolute owner thereof; and, therefore, attachment of such properties which did not belong to the defendant-judgment-debtors for satisfying the decrees was not valid. The executing court allowed both the claims. Therefore, the two separate plaintiffs instituted these two Title Suits by impleading the claimant along with the other defendants for a declaration that the properties were liable to be proceeded against for satisfaction of the respective decrees.

(3.) The short facts relevant for appreciating the contentions advanced are these:-- The plaintiffs claimed that Appalaraju was the brother-in-law of Satyanarayana, the 3rd defendant in Title Suit No. 71 of 1964, who was also the 2nd defendant in the connected suit. The auction-purchaser was not a resident of Koraput district. The property belonged to the family of the judgment-debtors and when for satisfying the demand of arrears of sales tax the certificate sale was held, Appalaraju was set up by the certificate-debtors to bid in the auction sale. The auction money was paid not by Appalaraju but was advanced by the certificate- debtors. This device was adopted to defeat the creditors of the certificate- debtors. The true owners of the property thus were the certificate-debtors who later became the judgment-debtors in the two suits. The right, title and interest in the properties thus continued to be with the family of the judgment-debtors and were liable to be attached. The claims should not have been allowed and the properties should have been found liable for attachment and to be proceeded against for satisfaction of the decrees, Appalaraju, the auction-purchaser, took the stand that the family of the certificate-debtors was heavily indebted and all their properties which formed the subject-matter of the two suits were under attachment in the earlier cases including the certificate case under the Madras Revenue Recovery Act. There were several bidders when in the certificate case the property was put to sale, and he was the highest bidder in the sale held on 15-5-58. The sale was duly confirmed on 6-8-60 and possession was delivered on 12-8-61. The sale became final and absolute title was acquired in the purchased property by the auction-purchaser.