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2013 DIGILAW 1213 (AP)

Ch. Venkata Rao v. J. R. Rameshji, Secunderabad

2013-12-24

L.NARASIMHA REDDY, M.S.K.JAISWAL

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Judgment : L. Narasimha Reddy, J. The 1st appellant filed the Suit in O.S. No. 62 of 1980 in the Court of the I Additional Judge, City Civil Court, Hyderabad, against the 2nd respondent for recovery of Rs.38,000/-. The Suit was decreed on 30.11.1981. By obtaining of precept, the 1st appellant filed E.P. No.5 of 1987 in the Court of Subordinate Judge, Siddipet for recovery of a sum of Rs. 53,067-50 ps. The E.P. Schedule property situated at Mulugu was attached on 26.4.1988. The 1st respondent filed a claim petition, being E.A. No.20 of 1988 under Rule 58 of Order 21 of C.P.C. in E.P. No.5 of 1987. He pleaded that the E.P. schedule property was purchased by him on 15.9.1986 under Ex.A1 and that the attachment of the said property is untenable. The E.A. was opposed by the appellants. The Executing Court dismissed the E.A. through order dated 25.8.1992. Aggrieved by that, the 1st respondent filed A.S.No.1959 of 1992 before this Court. A learned Single Judge of this Court allowed the said appeal through judgment dated 24.9.2001. Then, this Letters Patent Appeal under Clause 15 of the Letters Patent. Sri G. Krsihna Murthy, learned counsel for the appellants submits that one M/s. J.B. Bodo & Company filed O.S.No.25 of 1979 in the Court of the Subordinate Judge, Sangareddy District against the 2nd respondent for recovery of amount and for execution of the decree dated 24.6.1980, passed in the suit, the company filed E.P.No.5 of 1985. Learned counsel submits that the very property, which is the subject matter of the present proceeding in E.P. No.5 of 1985 was attached and that a notification was also published intimating that the sale of the property would take place on 17.9.1986. He contends that the alleged purchase of the land through Ex.A1 by the 1st respondent during the subsistence of attachment in the 1st suit is illegal and without any legal consequence. He contends that the alleged purchase of the land through Ex.A1 by the 1st respondent during the subsistence of attachment in the 1st suit is illegal and without any legal consequence. He submits that the attachment obtained in E.P.No.5 of 1985 in O.S.No.25 of 1979 would no doubt be subject to the attachment under earlier execution proceedings initiated by M/s. J.B. Bodo & Company, but, the purchase of the land by the 1st respondent would not in any way affect the rights of his client to proceed with the E.P. Sri S.Srinivasa Reddy, learned counsel for the 1st respondent, on the other hand, submits that though the property was under attachment in E.P.No.5 of 1985 in O.S.No.25 of 1979, when the 1st respondent purchased the land, the E.P. stood terminated with the payment of the amount and thereby the attachment also ceased. He contends that the only person who could have complained of the purchase of the property during the subsistence of attachment would have been M/s. J.B. Bodo & Company and the appellants, who filed E.P. two years subsequent to the termination of attachment in the 1st suit, have no basis or locus standi to challenge the purchase made by the 1st respondent. He submits that the Executing Court, in the instant case, dismissed the E.A. not being able to maintain a distinction between the attachment made in two separate E.Ps. He contends that the order passed by the learned Single Judge does not warrant any interference. The suit filed by the 1st appellant in the Court of the I Additional Judge, City Civil Court, Hyderabad was decreed on 30.11.1981. However, he initiated the execution proceedings only in the year 1987. The order of attachment was obtained on 26.4.1988. On coming to know that the property was attached, the 1st respondent filed E.A.No.20 of 1988 under Rule 58 of Order 21 of C.P.C. Since the E.A. filed under that provision is required to be dealt with as an independent Suit, the Executing Court framed a point, namely, ‘whether the properties are not liable for attachment and the claim of the 1st respondent be allowed’. The 1st respondent deposed as P.W.1 and he filed Ex.A1, Certified copy of the sale deed dated 15.9.1986. He has also filed pahanies for the years 1986 to 1989, marked as Exs.A2 to A4. The 1st respondent deposed as P.W.1 and he filed Ex.A1, Certified copy of the sale deed dated 15.9.1986. He has also filed pahanies for the years 1986 to 1989, marked as Exs.A2 to A4. On behalf of the appellants, R.W.1 was examined and no documentary evidence was adduced. The point was answered against the 1st respondent. In A.S. No.1959 of 1992 filed by the 1st respondent, this Court framed only one question i.e., “whether the claim of the 1st respondent is sustainable”. It was answered in favour of the 1st respondent. In this L.P.A., the same aspect is canvassed by the parties. An attachment ordered in an Execution Petition in respect of any property would disable the owner thereof to sell it in favour of third parties. If it is proved that the sale of the property took place with the knowledge of the attachment, it can certainly be ignored by the Executing Court in the course of the execution of the decree. In the instant case, the attachment was made on 24.6.1988. Had the 2nd respondent transferred the same in favour of the 1st respondent during the subsistence of the attachment, the right of the appellants to proceed against the same would have remained unaffected. However, by the time, the attachment was ordered, the 2nd respondent ceased to be the owner of the property. It was sold in favour of the 1st respondent through sale deed dated 15.9.1986. Therefore, it emerges that the very attachment made in the suit/E.P. of the appellant was futile since the judgment debtor did not hold any saleable interest in the attached property. The plea of the appellants is that the 1st respondent purchased the property during the subsistence of the attachment in a different E.P. filed in respect of the 1st suit. It is a matter of record that the very property was attached in E.P.No.5 of 1985 in O.S. No.25 of 1979 on the file of the Subordinate Judge, Sanga Reddy District filed by one J.B. Bodo & Company against the 2nd respondent. It is a matter of record that the very property was attached in E.P.No.5 of 1985 in O.S. No.25 of 1979 on the file of the Subordinate Judge, Sanga Reddy District filed by one J.B. Bodo & Company against the 2nd respondent. Despite such attachment, the 2nd respondent sold the property on 15.9.1986 under Ex.A1 to the 1st respondent and the sale took place two days before the date fixed for sale of the property in the E.P. The plea of the 1st respondent is that the sale proceeds of the property were paid to M/s. J.B. Bodo & Company, the decree holder in O.S.No.25 of 1979 has withdrawn the E.P. on receiving the decretal amount. The appellants dispute the said fact. Assuming that the decree in O.S.No.25 of 1979 was not set aside and the property was sold by the 2nd respondent to the 1st respondent during the subsistence of attachment, the only person who complained about it is the decree holder, i.e., M/s. J.B. Bodo & Company. When they did not have any grievance, the appellants do not have any locus standi or a genuine grievance vis-à-vis the purchase of the property by the 1st respondent. The plea that the appellants had proportionate charge would have been available if only the attachment made in E.P.No.5 of 1987 in O.S.No.62 of 1980 was subsisting, when the order of attachment was passed on 26.4.1988 in E.P.No.5 of 1987 in O.S.No.62 of 1980. The plea of the 1st respondent that E.P.No.5 of 1987 was withdrawn on receiving the decretal amount in O.S.No.75 of 1979 remains un-rebutted. The learned Single Judge has taken all these aspects into account and allowed the appeal. We do not find any merits in the Letters Patent Appeal and the appeal is accordingly dismissed. The miscellaneous application filed in this appeal shall also stand disposed of. There shall be no order as to costs.