RAMALINGAYYA Vs. VELLURI NARAYANAPPA

JUDGEMENT

(1.) In this case a money decree was passed in O.S. No. 661 of 1899 against one Pullanna and his three sons on the 7 March 1900. After Pullanna's death, the properties of the family were attached in execution of the decree in 1912. The appellants, who are Defendants Nos. 1 to 3, put in a claim petition on 16th January 1918. The District Munsif passed the following order: The petition is presented too late. The claim will be notified. Petition is dismissed.

(2.) The defendant who had obtained mortgage-decrees in O.S. Nos. 719 and 720 of 1911, brought the property to sale and 1 defendant bought it in Court-auction on 26 August 1915 and took delivery of possession on 7 April 1916. The plaintiffs, who purchased the property in auction on 17 January 1913, in execution of the money decree in O.S. No. 661 of 1899, have brought the suit for possession of the property. The District Munsif and the District Judge held that the defendants were concluded by the order on their claim petition and that they could not resist the plaintiff's suit.

(3.) Mr. Justice Madhavan Nair dismissed the second appeal of the defendants. The contention of Mr. Seetharama Rao, for the appellants, is that inasmuch as the appellants had obtained a preliminary decree on 5 November 1913 and a final decree on 1 November 1915, the doctrine of lis pendens applies to the sale held between the passing of the preliminary decree and the final decree. It is difficult to follow the argument that because the appellants brought a suit on a mortgage in their favour, and that the suit was pending, the order on the claim petition against them, which has not been set aside by a suit, is not binding upon them. Under Order 21, Rule 58, a person who objects to an attachment on the ground that the property is not liable to attachment may prefer a claim. And under Rule 63, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive.