SABAPATHI PILLAI (DIED) Vs. MOHAMMAD ILAIS SAIT

JUDGEMENT

(1.) The plaintiff is the appellant. He instituted the suit out of which this second appeal arises to set aside the summary order passed on the 24 June, 1942, in E.A. No. 244 of 1942 in E.P. No. 707 of 1941 on the file of the District Munsiff's Court of Tiruppur.

(2.) The claim order was passed under the following circumstances. The first defendant in the present suit executed a promissory note on the 25 April, 1935 for a sum of Rs. 600 in favour of the plaintiff. As the amount due under the promissory note was not paid the plaintiff instituted O.S. No. 322 of1937 on the file of the District Munsiff's Court of Coimbatore. He also applied in I.A. No. 646 of 1937 for an attachment before judgment of certain immoveable properties of the first defendant and obtained an interim attachment order. On the 28th October, 1937, the suit was decreed ex parte and the interim attachment before judgment was made absolute. On the 4 June, 1940, the decree-holder filed E.P. No. 2203 of 1940 in the District Munsiff's Court of Coimbatore for sale of the properties, which were attached before judgment in I.A. No. 646 of 1937.In this execution petition presumably the judgment- debtor was served and after several adjournments on the 6 January, 1941, the Court passed an order directing proclamation and sale of the property on the 24 March,1941.The further hearing of the application was also adjourned on the same day to 31 March, 1941.On the 6th January, 1941, a note was put up by the office pointing out that it was then discovered that the properties which were sought to be sold were not within the jurisdiction of that Court but were outside it, i.e. within the jurisdiction of the District Munsiff's Court of Tiruppur. The suggestion of the clerk who put up the note was that the hearing of the execution application should be advanced and that the same be dismissed and the decree-holder should be left to take other effective steps. No notice of this was given to the decree-holder and the District Munsiff passed an order on the 6 January, 1941, in the following terms: Advanced and dismissed. Attachment to subsist for six months.

(3.) When the decree-holder went to the Court about the 24 March, he was told that the execution petition was dismissed earlier. He applied for a copy of the order and curiously the copy that was granted to him omitted the limit of six months It stated " Advanced and dismissed. Attachment to subsist." After this the decree-holder had the decree transmitted for execution to the District Munsiff's Court, Tiruppur and on the 9 July, 1941, filed E.P. No. 707 of 1941 for the sale of the property. The present second defendant then intervened with a claim petition alleging that the property was purchased from the first defendant by one Kasim Sahib on 3 June, 1940, and that from the said Kasim Sahib she had purchased the same on 24 October, 1940, and that as by the lapse of the period of six months the attachment had ceased, her title became perfected. That claim was allowed by the District Munsiff on the 24th June, 1942. The plaintiff therefore instituted the present suit to set aside the claim order.