TIRUMALAI AIYANGAR Vs. ARUNACHALA THEVAR

JUDGEMENT

(1.) The defendant is the appellant. Respondents 1 and 2 filed the suit for declaration of their title to item No. 2 of the plaint schedule and for an injunction or alternatively for possession of the same. The said item is an extent of 68 cents in the southernmost portion of the northern half of S. No. 455/1, the total extent of which is 4 acres and 8 cents. One Narayana Rao and his. two brothers owned the northern portion of S. No. 455/1, to the extent, of two acres and 5 cents. It is not quite clear whether the extent really is 2 acres. 4 cents, or 2 acres 5 cents. In 1921 there appears to have been a partition, in and by which the southernmost portion was allotted to Narayana Rao. There was an attachment before judgment of Narayana Rao's interest in 2 acres and 5 cents belonging to himself and his brothers in common in O.S.. No. 248 of 1932. The attachment was apparently on the footing of an undivided coparcenary interest of Narayana Rao in the family properties. The fact that there had been a partition was not known to the plaintiff in that action who got the attachment. In 1935 all the three brothers sold the entire property to the present respondents for a sum of Rs. 600. The patta appears to have been a joint patta all along. There is no reference in the sale deed to the partition of 1921 or to separate possession and enjoyment of separate portions of the property by the three brothers. Prima facie it looks as if it is a conveyance by all the three brothers of what was joint property for raising funds to meet family expenses. In 1942 the present appellant filed E.A. No. 49 of 1942 for execution of the decree which he had obtained against Narayana Rao by sale of the property which had been attached before judgment. On 5 March, 1942, the following order was passed on that application: Defendant's notice returned unserved for want of proper address and residence. The-petition may be renewed with correct address. Struck off. The attachment will subsist.

(2.) Subsequently, the appellant filed another execution petition, E.P. No. 300 of 1942, for sale of the attached property. This was ordered and he purchased the property on 12 March, 1943. The sale was confirmed on 16 April, 1943.

(3.) The question in dispute in this second appeal relates to the competing title of respondents 1 and 2 who purchased under the private sale of 1935 and of the appellant who purchased in execution of his decree in O.S. No. 248 of 1932. Two-points are raised and argued in this second appeal. The first relates to the question, whether the property which was purchased by the respondents is the property which was attached before judgment. The second point is whether the attachment had come to an end by reason of the order in E.P. No. 49 of 1942. The respondents title to the properties can be defeated only by reference to Section 64 of the Civil Procedure Code.