CHAMIYAPPA THARAGAN Vs. RAMA AYYAR AND EIGHT 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 immoveable property in execution of a money-decree in O.S. No. 341 of 1894 in the Palghat District Munsif s Court against the present seventh defendant and the other members of his family. The decree was transferred for execution to the Palghat Subordinate Court which attached the immoveable properties of the family including the properties now in suit, on 9th September 1895. The attachment was struck off on 4th November following for want of process, and the decree went back to the Munsif s Court, where the decree-holders recovered certain sums by way of rateable distribution in 1896 and 1897, and thereafter kept the decree alive by applications to that Court for execution against the person until 5th 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. 81 of 1907 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 seventh defendant, and the attached properties were sold in 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 encumbrances 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 8th July 1907 Raman Kutti sold the suit properties, which were some of the properties so acquired by him, to the present seventh defendant, one of the judgment-debtors. On 24th July 1907 the seventh defendant agreed to sell the property to the present first 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 seventh defendant agreed to sell he had no notice of R.P. No. 31 of 1907, as notice to him was not ordered until 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 first defendant, a transferee from the seventh 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 first 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. Anantakrishna Ayyar 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 seventh defendant from alienating the attached properties to the first 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 mortgager 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. 81 of 1907 the defendant s claim was barred by res judicata and the doctrine of lis pendens.