DUNNA VENKATA RAO Vs. SREE RAJAH SAHEB MEHARBAN I DOSTAN RAJAH RAO VENKATAKUMARAMAHIPATHI SURYA RAO BAHADUR GARU

JUDGEMENT

(1.) This second appeal was referred by me to be heard by a Bench as it raised two important questions, one relating to the interpretation of Order 21, Rule 57, Civil Procedure Code as amended by this Court and the other concerning the effect of a prior execution order on the title of the plaintiff.

(2.) The subject matter of this second appeal is a house which once belonged to the second defendant. On 15 June, 1930, the second defendant obtained a loan from the Co-operative Society, Vuppada, giving some properties of his as security. The Society subsequently discovered that the security was insufficient and demanded the second defendant to give further security. By an agreement dated 5 of May 1935, the second defendant agreed to mortgage the suit house to the said society. The society obtained an award in respect of the amount due to it against the second defendant, on the 21 of July, 1937. In pursuance of this award the properties of the second defendant were brought to sale and were purchased by the first defendant, the Maharajah of Pithapuram. With a view to get that sale set aside, the second defendant raised funds by mortgaging the suit house to the plaintiff by a mortgage dated 20 of August, 1937, (Ex. P. 1). The amount was paid by the plaintiff to the Co- operative Society, and the sale was consequently set aside on 30 of August, 1937. While these proceedings were going on, the first defendant instituted O.S. No. 429 of 1935 on the file of the District Munsiff's Court, Peddapuram against the second defendant who was a karnam of one of the villages comprised in the estate of the first defendant for the recovery of an amount which it was alleged the second defendant misappropriated. The suit house was attached before judgment on the 15 of October, 1936, and the suit was decreed on the 24th of September, 1937. On the 26 of October, 1938, the first defendant filed an execution petition which was un-numbered and which may be described as E.P. No. 1 for bringing the suit house which was attached before judgment to sale in pursuance of the attachment already effected and also for leave to set off under Order 21, Rule 72. That petition was returned on the 29 of October, 1938, for filing the sale papers, and the encumbrance certificate granting two weeks time. It was re-presented by the decree-holder, the first defendant, on the 12 of November, 1938, with a prayer to grant a further week's time, as the encumbrance certificate which was applied for was not received by then. By an order of 15 November, 1938, the petition was rejected by the Court. The order was as follows : "Petitioner had ample time even after filing the E.P. Rejected." In 1939, the decree-holder filed a second execution petition, E.P. No. 37 of 1939, for bringing the property to sale. After receiving notice, the judgment-debtor, the second defendant, objected to the sale on the ground that the attachment before judgment made in the suit came to an end under Order 21, Rule 57, Civil Procedure Code and that a fresh attachment was necessary before a sale could be ordered. His contention was that the first execution petition was dismissed for default of the decree-holder and that therefore the attachment came to an end under Order 21, Rule 57. The matter was considered by the same District Munsiff who passed the order on the first execution petition. He was of opinion that the first execution application had no legal existence as it was not numbered and was not admitted, and therefore, the rejection of that application had not the consequence of terminating the attachment under Order 21, Rule 57. The order of the District Munsiff is dated 23 of August, 1939 (Ex. D. 1). There was an appeal against that order by the judgment debtor to the Subordinate Judge of Coconada (A.S. No. 100 of 1939). He confirmed the order of the learned District Munsiff substantially for the same reasons (Ex. D. 2). In pursuance of that E.P. however, the sale was not effected and the proceedings terminated.

(3.) The plaintiff obtained preliminary and final mortgage decrees on the basis of the mortgage in his favour (Ex. P. 1) in 1939 in O.S. No. 32 of 1939, or District Munsiff's Court, Peddapuram, and brought the hypotheca to sale and purchased it himself on 30 of January, 1940. He obtained a sale certificate dated 12 March, 1940, and obtained delivery of possession also in 1943.