CHAMIYAPPA THARAGAN ALIAS CHINNAPPA THARAGAN (FAMILY MANAGER) Vs. MSRAMA IYER, RECEIVER OF THE ESTATE OF KOCHAPPA MANNATIAR S SONS THIRUCHA MANNADIAR AND 5 ORS

JUDGEMENT

(1.) This appeal from a decree for redemption raises questions of some importance as to the duration and effect of an attachment of immoevable property in execution of a money decree in O.S. No. 341 of 1994 in the Palghat District Munsifs Court against the present 7th defendant and the other members of his family. The decree was transferred for execution to the Palghat Sub-ordinate Court which attached the immoveable properties of the family including the properties now in suit on 9th September, 1895. The attachment was struck off for want of process on the 4th November following, and the decree went back to the Munsifs Court, where the decree-holders recovered certain sums by way of rateable distribution in 1996 and 1897, and thereafter kept the decree alive by applications to that court for execution against the person until the 5th of March, 1907, the day before the decree would have become barred. when the transferee of the decree made a fresh application to the Subordinate Court in E.P. No. 31 of 1907 for attachment and sale of the properties. There was no fresh attachment, but sale was ordered after overruling the objections raised by the counter-petitioner, the present 7th defendant, and the attached properties were sold at court auction on 9th November, 1908 to a purchaser through whom the plaintiff claims.

(2.) To understand his case it is necessary to see what had happened to the attached properties between September 1895, the date of the attachment, and November 1908, the date of his purchase. It is sufficient to say that they had been sold free of incumbrances on 7th February, 1906 at a court auction to one Raman Kutti in execution of a decree in O.S. No. 299 of 1903 on one of several mortgages subsisting at the date of the attachment; and on 5th July, 1907 Raman Kutti sold the suit properties which were some of the properties so acquired by him to the present 7th defendant, one of the judgment-debtors. On the 24th July 1907 the 7th defendant agreed to sell the property to the present 1st defendant who instituted a suit for specific performance of the agreement in October 1907, obtained a decree in January 1908, and a Court conveyance on 2nd February 1909. In July 1907 when the 7th defendant agreed to sell he had no notice of E.P. No. 31 of 1907, as notice to him was not ordered until the 19th August 1907.

(3.) The contest is, therefore, between the plaintiff claiming through the auction purchaser in execution of the money decree of 1895, and the 1st defendant, a transferee from the 7th defendant who after the sale of his equity of redemption in the suit properties under the mortgage decree in O.S. No. 299 of 1903, bought them back from the auction purchaser and contracted to sell them to the 1st defendant before he had any notice of the application which had then been filed for the execution of the old money decree of 1895. It will be most convenient to deal with the grounds on which Mr. Ananthakrishna Aiyar for the respondents endeavoured to support the decree for redemption passed by the lower court. He contended that the effect of the attachment of September 1895 was to prevent the 7th defendant from alienating the attached properties to the 1st defendant and to render the alienation void. Even if this were not so, he contended in the alternative, that, as the attaching decree-holders in O.S. No. 341 of 1894 were not made parties to the mortgage suit, their statutory right under Section 91(f) of the Transfer of Property Act to redeem the mortgaged properties was not affected, and passed to the auction purchasers in that suit through whom the plaintiff claims. He further contended that by reason of the proceedings in E.P. No. 31 of 1907 the defendants claim was barred by res-judicata and the doctrine of lis pendens.