SUBRAMANIA AIYAR Vs. ANNAVI PILLAI

JUDGEMENT

(1.) The appellant here held a decree against one Doraiswami, the second defendant in the suit from which this second appeal arises. Another decree-holder against the same Doraiswami was one Nalluswami Nayudu. Nalluswami Nayudu had brought certain property belonging to Doraiswami to sale in execution of his decree on the 29 August, 1934, and three other decree-holders including the present appellant had applied for rateable distribution. Meanwhile, however, Doraiswami applied first under Rule 90 and then under Rule 89 of Order 21, for setting aside the sale. Upon filing the application under Rule 89, he no longer pressed the application under Rule 90, which was dismissed. The application under Rule 89, was eventually allowed and the sale set aside on the 31 of October, 1934.

(2.) In the meanwhile two events happened. On the 20 of September, the judgment-debtor sold the property which was the subject-matter of the sale to the plaintiff and on the 29th September, the appellant who had filed an execution application for the attachment of this property on the 29 of August, had the attachment effected. Further proceedings in E.P. No. 888 of 1934 included a claim petition by the plaintiff based upon his sale deed from the second defendant and after it was dismissed the present suit was filed by the plaintiff on the 13 of March, 1935.

(3.) The plaintiff's suit has been resisted by the appellant on the ground that the sale deed from the second defendant to the plaintiff conveys no title which can be enforced against the rights of the appellant under Section 64 of the Code. As the lower appellate Court has decided against the appellant on this point the present second appeal has been filed.