Judgment :- These Second Appeals arise out of the common Judgment against the concurrent findings of the Courts below dismissing the Appellants suit O.S.No.124/2004 and decreeing the suit O.S.No.528/2001 filed by the Respondents/D10 and D11 and granting declaration of title in favour of Defendants 10 and 11 and passing preliminary decree for partition in their favour. For convenience, parties are referred as per their array in the suits. 2. Subject matter was involved in a chain of litigations. To appreciate the contentious points, it is necessary to refer to the factual background. Uncontroverted facts are as follows:- Suit properties relate to the lands comprised in S.F.No.134/4, Kumilamparappu village, Bhavani Taluk corresponding to old S.Nos.116/B, 117/B, 121/F, 122/A, B, C, D and E and 123/A, B, C an extent of 9.65 acres ( 98. 5 hecares). Properties are the ancestral properties of one Varanavasi Gounder. 3. Parties are related as under:- Ramana Gounder | | | Muthu Gounder Varanavasi Gounder | | | | | | Sengottaiyan Ramasamy Arunachalam Chenniappan (Appellant) (J.D) There was a parition on 010. 1973 (as mentioned in Ex.A4) between Varanavasi Gounder and his sons and in the said partition, 4.82½ acres was allotted to Arunachalam and Chenniappan. 4. Plaintiff/Appellant and his father had purchased the entire 9.65 acres from Varanavasi Gounder and his two sons under Exs.A1 to A4 sale deeds dated 17. 1968; 22. 1968; 010. 1973 and 11.03.1976. Appellant became the owner of entire extent of 3. 98.5 Hectares (9.65 acres) and that he has been in exclusive possession and enjoyment of the suit properties. One Kumarasamy filed O.S.No.539/1974 against Chenniappan for recovery of money. In the said suit I.A.No.1509/1974 was filed and obtained an order of Attachment Before Judgment ( ABJ) in respect of the lands comprised in S.F.No.134/4, Kumilamparappu village, Erode to an extent of 4.82½ acres of out of 9.65 acres. The order of ABJ was made absolute on 17.09.1978. The said suit was decreed on 08.02.1990. For the execution of decree, Decree-Holder filed E.P.No.6/86. On 19.06.1987 auction of the properties comprised in S.F.No.134/4 was ordered. On 23.01.1994, property was sold in public auction for a sum of Rs.50,200/- in favour of 3rd Defendant. On 25.01.1995 auction was confirmed and sale certificate was issued. Auction purchaser / 3rd Defendant filed E.A.No.819/95 for delivery of possession and had taken possession through Bailiff on 112. 1998. On 19.06.1987 auction of the properties comprised in S.F.No.134/4 was ordered. On 23.01.1994, property was sold in public auction for a sum of Rs.50,200/- in favour of 3rd Defendant. On 25.01.1995 auction was confirmed and sale certificate was issued. Auction purchaser / 3rd Defendant filed E.A.No.819/95 for delivery of possession and had taken possession through Bailiff on 112. 1998. 10th Defendant Venkatachalam and his wife 11th Defendant Rajamani have purchased an extent of 2.41¼ acres each from 3rd Defendant/auction purchaser, totaling 4.82½ acres. 5. Appellant/Plaintiff Ramasamy filed O.S.No.800/1996 before District Munsif Court, Erode for declaration that he is the owner of S.F.No.134/4 corresponding to old S.F.Nos. 116/B; 127/B; 121/F; 122/A, B, C, D and E and 123/A, B, C total extent of 9.65 acres and for consequential injunction. Suit O.S.No.800/1996 was transferred and renumbered as O.S.No.124/2004 on the file of I Additional Sub-Court, Erode. .6. Case of Appellant/Plaintiff is that he is entitled to the entire extent of 9.65 acres and that 3rd Defendant/auction purchaser cannot have any right over the property and that auction purchaser is trying to dispossess him. During the pendency of suit, D10 and D11 who were purchasers from auction purchaser have been impleaded as Defendants 10 and 11 in O.S.No.800/1996 (re-numbered as O.S.No.124/2004). 7. In his written statement, 3rd Defendant/auction purchaser contended that in order to defeat and defraud the court auction, Plaintiff has filed the suit in collusion with the Judgment-Debtor/2nd fendant. Auction purchaser has alleged that Appellant/Plaintiff is the close relative of 2nd fendant and that Plaintiff had known about the pendency of suit O.S.No.539/1974 and the execution proceedings and Appellant/Plaintiff is not a bonafide purchaser. 8. Defendants 10 and 11 who purchased the properties from 3rd Defendant/auction purchaser under Exs.B11 and B12 have filed written statement contending that under Exs.B11 and B12, they have purchased half of the property in S.F.No.134/4 to an extent of 4.82½ acres. According to D10 and D11, the purchaser in court auction will have priority over the alienation relied upon by the Plaintiff/Appellant. Defendants 10 and 11 have further averred that they have entered into an agreement of sale with auction purchaser/3rd Defendant and they have also filed suit for Specific Performance in O.S.No.429/1996 and the 3rd Defendant has sold 2.41¼ acres to each of Defendants 10 and 11, total extent of 4.82½ acres. 9. Defendants 10 and 11 have further averred that they have entered into an agreement of sale with auction purchaser/3rd Defendant and they have also filed suit for Specific Performance in O.S.No.429/1996 and the 3rd Defendant has sold 2.41¼ acres to each of Defendants 10 and 11, total extent of 4.82½ acres. 9. Based on the sale deeds, Exs.B11 and B12 purchased from the court auction purchaser and claiming that they are the bonafide purchasers for value, D10 and D11 filed O.S.No.528/2001 for declaration of their title in respect of 4.82½ acres and for effecting partition of their half share from out of total extent of 9.65 acres. 10. Tracing his title through Exs.A1 to A4, Appellant/Plaintiff resisted the suit O.S.No.528/2001. .11. On the above pleadings, relevant issues were framed. Upon consideration of oral and documentary evidence, trial court held that Plaintiff had purchased the property under Ex.A4 sale deed dated 13. 1976 which is well after the date of attachment and without taking steps to set aside the sale, suit filed by the Plaintiff for declaration and permanent injunction is not maintainable. Trial court further held that Defendants 10 and 11 have purchased the properties from auction purchaser / 3rd Defendant on 12.05.1999 under Exs.B11 and B12 and Appellant had knowledge about the auction sale and delivery of property to auction purchaser as he is the close relative of Judgment-Debtor Chenniappan. Trial court further held that Appellant had purchased the property after the order of ABJ and therefore, he is not entitled to the relief of declaration and injunction as sought for and on those findings, dismissed the suit O.S.No.124/2004 and decreed the suit O.S.No.528/2001. 12. Being aggrieved, Appellant/Plaintiff filed A.S.Nos.7 and 8/2007. Lower Appellate court held that though Plaintiff had purchased properties under Exs.A1 to A4, court auction sale will prevail over the private sale in favour of the Appellant and his father. Pointing out the close relationship of the Appellant with the 2nd Defendant/JD, lower Appellate court held that there was every possibility that the Appellant would have known about the court auction sale. Lower Appellate court faulted the Plaintiff for not taking steps either in the execution stage or for setting aside the sale deeds in favour of Defendants 10 and 11. 13. Lower Appellate court faulted the Plaintiff for not taking steps either in the execution stage or for setting aside the sale deeds in favour of Defendants 10 and 11. 13. When the Second Appeals came up for admission, Defendants 10 and 11 entered appearance through their counsel and raised objection as to the admission of Second Appeals. Records were called for from the lower court. With consent of both counsels, both the Second Appeals were taken up for final hearing. 14. During the course of arguments inter alia, the following substantial questions of law were raised for consideration:- 1)Whether the Appellant can claim under Exs.A1 to A4 and whether Courts below were not right in holding that Appellant must have had knowledge of decree in O.S.No.539/1974 and execution proceedings thereon? 2)Whether the respondents 1 and 2 herein (Plaintiffs in O.S.No.528/2001) are entitled to get the relief of partition and separate possession on the basis of their claim under Exs.B11 and B12 (15. 1999) even though their vendor was given only symbolic possession in E.P.No.6/1986 and in the absence of any suit at the instance of the court auction purchaser for necessary relief? 15. Mr. N.Manoharan, learned counsel for the Appellant contended that Exs.A1 to A3 are very much prior to the order of attachment made in I.A.No.1509/1974 in O.S.No.539/1974 and Courts below erred in brushing aside Exs.A1 to A3. Learned counsel for the Appellant further contended that when Chenniappan and his father Varanavasi Gounder had already sold away the properties under Exs.A1 to A3, Judgmen-Debtor had no saleable interest on the date of sale and the Court could not have conveyed a valid title in favour of 3rd Defendant Somasundaram. Learned counsel for the Appellant would further contend that as per Or.XXI, R.92(4) C.P.C. when a third party challenges the Judgment-Debtors title by filing a suit, such a suit is well maintainable. Learned counsel for the Appellant further argued that earlier execution proceedings filed by the Decree-Holder (E.P.Nos.519/81 and 139/82) were dismissed for default and therefore, ABJ ceased and Decree-Holder has only obtained a fresh order of attachment in E.P.No.6/1986 ( on 16. 1989) and therefore, Courts below erred in concluding that the purchase by Plaintiff/Appellant were subsequent to the court auction sale. 1989) and therefore, Courts below erred in concluding that the purchase by Plaintiff/Appellant were subsequent to the court auction sale. It was further argued that the Courts below erred in saying that the sale deeds in favour of D10 and D11 would have priority over the right of Appellant/Plaintiff. 16. Taking me through the documents and other materials, Mr.G.Ethirajulu the learned counsel for contesting Respondents (Defendants 10 and 11) contended that Chenniappan had half share in the properties and the same was brought for sale pursuant to the order of ABJ and D10 and D11 having purchased the same from auction purchaser for valuable consideration, Courts below rightly decreed the suit O.S.No.528/2001. Drawing attention of the Court to other rounds of litigation filed by wife of Appellant a maintenance suit in O.S.No.652/92 and by Lingeswaran, son of the Appellant a partition in O.S.No.194/92, learned counsel for the contesting Respondents would submit that the said suits are collusive suits in order to defraud the auction purchaser and Defendants 10 and 11 and taking note of collusiveness of the suits, Courts below rightly dismissed O.S.No.124/2004 and the same cannot be interfered with. 17. Suit property is comprised in S.F.No.134/4 corresponding to old S.F.Nos.116/B, 117/B, 121/F, 122/A,B,C,D and E and 123/A,B,C – 9.65 acres (98. 5 H). Appellant claims right in the entire extent by virtue of Exs.A1 to A4 sale deeds dated 17. 1968; 22. 1968; 010. 1973 and 11.03.1976 respectively. There is no dispute that the suit properties in O.S.No.124/2004 is the B schedule property in O.S.No.528/2001. Equally, there is no dispute that the property in A schedule in O.S.No.528/2001 forms part of B schedule. By virtue of Exs.A1 to A4, Plaintiff claims entire extent of 9.65 acres. By virtue of Exs.B11 and B12, Defendants 10 and 11 claim 4.82½ acres. 18. As pointed out earlier, in the money suit filed by Kumarasamy Gounder against Chenniappan in O.S.No.539/1974, ABJ was ordered on 011. 1974 in I.A.No.1509/1974 and the same was made absolute on 19. 1978. In E.P.No.6/1986, property was sold in court auction sale on 21. 1994 and 3rd Defendant Somasundaram was the auction purchaser. On 21. 1995 the sale was confirmed in favour of auction purchaser and the Court has issued sale certificate. 19. From Ex.B8 delivery receipt, it is seen that possession was taken by the auction purchaser through process of court on 112. 1995. 1994 and 3rd Defendant Somasundaram was the auction purchaser. On 21. 1995 the sale was confirmed in favour of auction purchaser and the Court has issued sale certificate. 19. From Ex.B8 delivery receipt, it is seen that possession was taken by the auction purchaser through process of court on 112. 1995. At that time when possession was taken through process of court, absolutely there was no objection from any quarters. Auction purchaser who purchased the property in the court auction sale had sold the same to Defendants 10 and 11 under Exs.B11 and B12. 20. Case of the Appellant is that his sale deeds Ex.A1 to A3 are prior to the date of court auction sale and therefore, court auction sale cannot have precedence over Exs.A1 to A3. Ex.A1 is the sale deed dated 17. 1968 in favour of Muthu Gounder, father of Plaintiff/Appellant executed by Chenniappan in respect of:- S.Nos.116/A – 70 cents out of 2.10 acres; 117/B – 30 cents out of 1.62 acres (common). Ex.A2 x is the sale deed dated 17. 1968 in favour of Appellant/Plaintiff executed by Arunachala Gounder and others in respect of:- S.Nos.116/A – 70 cents out of 2.10 acres; 117/B – 30 cents out of 1.62 acres (common). Ex.A3 is the sale deed dated 10. 1973 executed by Varanavasi Gounder and others in favour of Appellant/Plaintiff in respect of:- S.Nos.116/A – 70 cents out of 2.10 acres; 116/B – 1.04½ acres; 116/B – 1.02 acres out of 1.62 acres (common). Ex.A4 is the sale deed dated 13. 1976 executed by Chenniappan in favour of Appellant in respect of:- S.Nos.122/E – 2.12 acres; 122/F – 38 cents out of 53 cents; 120/E – 4½ cents out of 9 cents; 120/D – 10 cents out of 20 cents; 121 – 1.68 acres out of 3.36 acres. It is true that Exs.A1 to A3 sale deeds (dated 17. 1968; 22. 1968; 010. 1973) are prior to court auction sale. Under Exs.A1 to A3, Appellant and his father have purchased total extent of 4.76½ acres which is about half of the property in the total extent of 9.65 acres. 21. As seen from the above, under Ex.A4 sale deed dated 13. 1976 which is well after the date of attachment, Appellant/Plaintiff had purchased 4.32½ acres which again is around half of the extent of total property. 21. As seen from the above, under Ex.A4 sale deed dated 13. 1976 which is well after the date of attachment, Appellant/Plaintiff had purchased 4.32½ acres which again is around half of the extent of total property. Courts below have recorded factual findings that the schedule in O.S.No.124/2004 is the same as B schedule in O.S.No.528/2001. By careful analysis of documents, it comes to be known that Appellant/Plaintiff and his father have purchased about half of the property prior to the attachment. In respect of another half, Ex.A4 came into existence long after the order of attachment. Ex.A4 being subsequent to the order of attachment on 011. 1974, Appellant could not have derived valid title under Ex.A4. 22. For execution of the decree in O.S.No.539/1974, Decree-Holder Kumarasamy Gounder filed E.P.No.519/1981 which was dismissed for default on 01. 1983. Next E.P. filed in E.P.No.139/82 was also dismissed for default on 011. 1983. Thereafter, E.P.No.6/1986 was filed and on 16. 1987 fresh order of attachment was passed. Learned counsel for the Appellant contended that as contemplated under Or.XXI, R.57 C.P.C. attachment was not kept alive and in the absence of any specific order, attachment shall be deemed to have ceased. Learned counsel for the Appellant further contended that Ex.A4 cannot be treated as sale deed after the date of ABJ. It was further argued that fresh order of attachment came to be passed in E.P.No.6/1986 on 16. 1987 and the same has to be treated as the date of attachment and the Courts below erred in finding that Ex.A4 sale deed is subsequent to the order of attachment. 23. Or.XXI, R.57 C.P.C. applies when the application for execution is dismissed by the court for any reason whatsoever, whether for default, or on merits or suo motu. The court is to direct whether the attachment is to continue and if so, up to which period, or cease, and if so on which date. In default of any such direction on the part of court, attachment shall be statutorily deemed to cease. In the absence of such direction by the court, it has also been provided that the attachment shall be deemed to have ceased. 24. In default of any such direction on the part of court, attachment shall be statutorily deemed to cease. In the absence of such direction by the court, it has also been provided that the attachment shall be deemed to have ceased. 24. Learned counsel for the contesting Respondents would submit that where attachment before judgment is ordered, attachment order remains operative till the final decision of the execution proceedings and does not cease on the dismissal of execution proceedings in default. There is no force in the contention that in case of ABJ, attachment order remains operative notwithstanding the dismissal of Execution Petition. 25. Or.XXXVIII, R.11 C.P.C. makes it clear that in case where the property being attached before judgment, fresh attachment is not necessary in execution of decree when there is attachment before judgment. In 1976 amendment, Or.XXXVIII, R.11(A) C.P.C. has been inserted. Or.XXXVIII, R.11(A) C.P.C. clarifies the position in general terms that the provisions applicable to an attachment in execution of a decree shall also apply to an attachment before judgment. Or.XXXVIII, R.11(A) C.P.C. inserted by 1976 Amendment Act by which provisions of the Code applicable to attachment in execution have been made applicable to attachment before judgment and hence Rule 57 will apply to attachment before judgment thus settling the controversy in the matter. .26. Though, Or.XXI, R.57 C.P.C. would apply in cases of attachment before judgment, question arises whether the provisions of 1976 Amendment would be applicable to the case on hand. In I.A.No.1509/1974, ABJ was ordered on 011. 1974 much prior to the commencement of 1976 Amendment. Therefore, Or.XXXVIII, R.11(A) cannot be applied to the case on hand. Since the order of attachment dated 011. 1974 is prior to 1976 Amendment, it cannot be contended that when the dismissal of earlier Execution Petitions (E.P.No.519/81 and 139/82) ABJ was ceased. Assuming for the sake of arguments that Or.XXXVIII, R.11(A) is applicable,in any event, fresh order of attachment on 19.06.1987 in E.P.No.6/1986 does not take away the effect that Ex.A4 sale deed was subsequent to the order of ABJ on 011. 1974. 27. Learned counsel for the Appellant assailed the findings of the Courts below that the Courts below committed error in holding that the suit filed by the Plaintiff is not maintainable. Learned counsel for the Appellant further contended that under Or.XXI, R.58(5) C.P.C., suit for declaration of title and permanent injunction is well maintainable. 1974. 27. Learned counsel for the Appellant assailed the findings of the Courts below that the Courts below committed error in holding that the suit filed by the Plaintiff is not maintainable. Learned counsel for the Appellant further contended that under Or.XXI, R.58(5) C.P.C., suit for declaration of title and permanent injunction is well maintainable. It was further argued that Appellant had no knowledge about the suit O.S.No.539/1974 and therefore, he was prevented from filing any claim petition under Or.XXI, R.58(1) or other provisions and under such circumstances, the aggrieved person can maintain a suit under Or.XXI, R.58(5) C.P.C. 28. Appellant is not right in contending that his suit is well maintainable under Or.XXI, R.58(5) C.P.C. Or.XXI, R.58(5) applies where a claim or objection is preferred and the court refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute. Only when the court refuses to entertain the claim petition or rejected the same, suit could be filed under Or.XXI, R.58(5) C.P.C. within a period of one year. But Or.XXI, R.58(5) does not confer right upon the party to file a fresh suit as and when claimant chooses to do so. 29. Appellant/Plaintif who claims right to the property under Ex.A4 which is subsequent to the attachment before judgment and the Appellant could not have derived valid title under Ex.A4 sale deed. Having not chosen to resist the delivery proceedings as an obstructor nor resisted the execution proceedings, it is not open to the Appellant/Plaintiff to file a separate suit challenging the court auction sale. This is all the more so, when the Plaintiff has filed the suit for declaration and permanent injunction without seeking to set aside the court auction sale. .30. Courts below recorded concurrent findings of fact that the suit apears to be more in collusive in nature. Appellants wife filed O.S.No.652/1992 against her husband for partition and maintenance on 24. 1992 and obtained a decree on 13. 1997. Charges said to have been created for past maintenance and also future maintenance payable over the properties. Any charge created to the entire extent of 9.65 acres could be binding only to the extent of property owned by the Appellant and charge cannot be enforced against the extent of 4.82½ acres purchased by Defendants 10 and 11. 1997. Charges said to have been created for past maintenance and also future maintenance payable over the properties. Any charge created to the entire extent of 9.65 acres could be binding only to the extent of property owned by the Appellant and charge cannot be enforced against the extent of 4.82½ acres purchased by Defendants 10 and 11. Plaintiffs son Lingeswaran is also said to have filed O.S.No.194/1992 for partition. Here again the claim for partition is not maintainable in so far as, it relates to A schedule property in O.S.No.528/2001 which is the subject matter of attachment before judgment order. 31. Upon consideration of evidence, Courts below recorded concurrent findings that the sale deeds in favour of Appellant cannot have preferential right over the court auction sale and the title of Defendants 10 and 11 who have purchased 4.82½ acres under Exs.B11 and B12 from the court auction purchaser. Concurrent findings are based upon the evidence and materials on record and do not warrant interference and the Second Appeals are bound to fail. No substantial questions of law are involved in the Second Appeals and the Second Appeals are liable to be dismissed. 32. S.A.No.561/2008 :- In the result, the Judgment and decree dated 37. 2007 in A.S.No.7/2007 on the file of Additional District Court, Fast Track Court No.I, Erode is confirmed and the Second Appeal is dismissed thereby confirming the preliminary decree for partition passed in O.S.No.528/2001 on the file of I Additional Sub Court, Erode. Consequently, connected M.P. is also dismissed. No costs. 33. S.A.No.562/2008 :- In the result, the Judgment and decree dated 37. 2007 in A.S.No.8/2007 on the file of Additional District Court, Fast Track Court No.I, Erode (arising out of judgment and decree dated 212. 2004 in O.S.No.124/2004 on the file of I Additional Sub-Court, Erode) is confirmed and the Second Appeal is dismissed. Consequently, connected M.P. is also dismissed. No costs.