L A KRISHNA AYYAR Vs. ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) The facts in these appeals are that the appellant L. A. Krishna Ayyar obtained a decree against one S.R. Subramania Ayyar and his mother on 20 January 1919, the suit being upon two promissory notes. Previously he had got an attachment of S.R. Subramania Ayyar's immovable property on 18 October 1918. Whilst this attachment was in force, Subramania Ayyar executed a mortgage of his immovable properties on 7 November 1918 for Rs. 50,060 directing the mortgagee to pay Rs. 4,000 to the plaintiff-appellant and this sum was allowed as a credit when the decree in the suit was passed. On the date of the decree, the decree- holder, the appellant here, applied for the arrest of Subramania Ayyar but that petition was dismissed. He then filed a second execution petition for the sale of the properties attached before judgment. That petition was also dismissed, this time for the decree-holder's default, on 19 April 1922. He filed a third execution petition (E.P. No. 35 of 1924) for the sale of the properties. No fresh attachment was effected. S.R. Subramania Ayyar filed an objection petition saying that execution should not be allowed without fresh attachment. His objection was disallowed and the sale was held on 9 February 1925 and the appellant, the decree- holder, became the purchaser of the property in Court auction. S.R. Subramania Ayyar appealed to the High Court against the order disallowing his objection to the execution, tie also applied in E.A. No. 115 of 1925 under Order 21, Rule. 90, Civil P.C. to set aside the sale.

(2.) A few days later, namely, on 4 March 1925, the assignee from the mortgagee, Arunachalam Chettiar, applied in E.A. No. 181 of 1925 to set aside the sale under Order 21, Rule 89, Civil P.C. depositing Rs. 3,961-3-0 in Court. Meanwhile the High Court held that the attachment before judgment fell with the dismissal of the decree-holder's petition for default on 19 April 1922 and that the property sold was not under attachment, but dismissed the appeal leaving the matter to await the decision in E.A. No. 115 of 1925. Then the assignee mortgagee Arunachalam Chettiar filed O.S. No. 22 of 1924 in the Subordinate Judge's Court of Coimbatore on the assigned mortgage and got a decree on 28 August 1925, and while the two petitions, already referred to, to set aside the sale were pending, Arunachalam Chettiar filed O.S. No. 2134 of 1925 in the District Munsif's Court, Coimbatore, for a declaration that he had priority over the rights acquired by the auction purchaser and for stopping the execution proceedings and preventing the decree-holder from drawing the money and on 27th June 1927 got a decree only in respect of the priority claimed, the claim for the injunction and other consequential prayers being disallowed. There was an appeal against that decree by the appellant here but that was dismissed. Meanwhile on 19 July 1926, E.A. No. 115 of 1925, the application under Order 21, Rule 90, Civil P.C. was allowed and the sale was set aside, and on the same day E.A. No. 181 of 1925 the application under Order 21, Rule 89, Civil P.C. was ordered, the following order being made: This third party is entitled to deposit as he is interested in the property sold. Correct amount has been deposited in time. Sale set aside.

(3.) As regards the third execution petition, E.P. No. 35 of 1924, the following order was made, viz. Sale set aside as per E.A. No. 115 of 1925. E.A. No 181 of 1925. Sale held without proper proclamation is not valid. Petition dismissed: see separate order.