KASARABADA VENKATACHALAPATHI RAO Vs. GADIRAJU VENKATAPPAYYA AND ANRMINORS, REPRESENTED BY HIS MOTHER AND NEXT FRIEND MANIKYAMMA

JUDGEMENT

(1.) The first defendant in O.S. No. 142 of 1920 on the file of the Additional District Munsif's Court of Narsapur is the appellant before us. He was the plaintiff in O.S. No. 38 of 1912 on the file of the Principal District Munsif's Court, Narsapur, wherein he obtained a decree for money against M. Venkataramanayya on 30th September, 1913. He applied to execute his decree in O.S. No. 38 of 1912 by attachment and sale of certain immovable property and on the 14 of March, 1914, the District Munsif passed an order for attachment. In the meantime, M. Venkataramanayya, having filed an appeal against the District Munsif's decree, obtained an ad interim order staying execution, from the Appellate Court on 13th March, 1914. The interim stay order was received in the District Munsif's Court on 16 March, 1914, and before the amin was informed of the order, the amin reported on the 17 March, 1914, that attachment was carried out on that very date (17 of March) by affixing a copy of the proclamation on the land. Subsequently ad interim order was vacated on the 15 of April, 1914, as the judgment-debtor failed to furnish security as required by the Appellate Court. Venkataramanayya filed an application, M.P. No. 1950 of 1914, on 6 October, 1914, under Section 47 of the Code alleging that the attachment made on 17th March, 1914, after the Appellate Court ordered stay of execution was ultra vires and illegal, and that the application for sale made by the decree-holder on the strength of the said attachment was not maintainable, and he prayed that "the Court may cancel the attachment and the sale application made by the decree- holder". The District Munsif overruled the contentions of the decree-holder and directed that "the attachment in question be raised and all further proceedings following thereon quashed." On appeal the said order was confirmed by the Subordinate Judge. When the appeal was pending, Venkataramanayya died and his widow Kameswaramma was brought in as his legal representative by the Appellate Court. The decree-holder in O.S. No. 38 of 1912 preferred a Civil Miscellaneous Second Appeal to the High Court. There was a reference to the Full Bench in that Civil Miscellaneous Second Appeal. The Full Bench held: Where subsequent to an ad interim order for stay of execution "made by an Appellate Court without notice to the decree-holder, but before its communication to the Court of first instance, an order of attachment is made by the latter Court, the order of attachment is not void and ineffectual as having been made without jurisdiction, but is legally valid, and that the order is effective only from the time it is communicated to the first Court": Vevkatachalapathi Rao V/s. Kameswaramma (1917) I.L.R. 41 M. 151 : 33 M.L.J. 515 (F.B.).

(2.) The case came on for final disposal before the referring Judges (Abdur Rahim and Bakewell, JJ.) and they passed the following judgment in the case on 18th December, 1917: The appeal will be allowed, the respondent's petition dismissed, and the attachment restored. The appellant will recover his costs from the respondent throughout.

(3.) On the allegation that by a sale deed, dated 27 May, 1914, Gadiraju Venkatappayya and others had purchased the property in question from Venkataramanayya, they (the vendees) filed a petition on 26 August, 1918, under Order 21, Rule 58, Civil Procedure Code, to raise the attachment on the ground that there was no valid attachment on the properties on the date of their purchase. The decree-holder contested the position with the result that the petition was dismissed on 31 October, 1919. The vendees (Gadiraju people) filed O.S. No. 142 of 1920 purporting to be under Order 21, Rule 63, Civil Procedure Code, for setting aside the order passed on the 31 October, 1919, and they made the decree-holder in O.S. No. 38 of 1912 as the first defendant to their suit and Kameswaramma (the widow of the judgment-debtor in O.S. No. 38 of 1912) was made the second defendant. Various contentions were raised by the parties, such as, for example, whether there was a valid attachment of the properties, whether the question was res judicata by reason of the order passed by the High Court on the 18 December, 1917, whether the plaintiffs were estopped from questioning the attachment, and whether the suit was barred by Section 47 of the Civil Procedure Code. Both the Lower Courts having dismissed the suit, the plaintiffs (Gadiraju people) preferred a second appeal to the High Court. The learned Judge who heard the second appeal was of opinion that on the facts disclosed by evidence in the present case there was no legal and valid attachment on the properties, that the plaintiffs who were not parties to the proceedings that came before the High Court in connection with the execution of the decree in O.S. No. 38 of 1912 were not bound by the orders passed therein, and that it was open to the plaintiffs to show that there was no valid attachment on the property when they purchased the same on the 27 of May, 1914. The learned Judge came to the conclusion that after the ad interim stay order passed by the Appellate Court on the 13 of March, 1914, was received in the District Munsif's Court on the 16 March, 1914, no proceedings in execution could be legally taken in the case, and that the attachment which was effected by affixing a notice on the properties on the 17 March, 1914, and on the Court-house and the Collector's Office on the 23 March, was not merely irregular but illegal and void. Holding that the plaintiffs were not bound by the orders passed against their vendor--the judgment-debtor--after the judgment-debtor had sold the properties to them, the learned Judge reversed the judgments of both the Lower Courts and set aside the order passed in the claim petition on the 31 of October, 1919.