DUBAGUNTA SUBRAHMANYAM, J.

( 1 ) THIS appeal is filed against judgment dated 21-3-1994 in A. S. No. 19 of 1993 on the file of Subordinate judge, Peddapuram, confirming the order and decree dated 6-8-1993 in E. A. No. 104 of 1990 in E. P. No. 147 of 1989 in O. S. No. 52 of 1985 on the file of District Munsiff, prathipadu. The claimant is the appellant.

( 2 ) NECESSARY facts for the disposal of this appeal are as follows : first respondent decree holder obtained a money decree against second respondentjudgment debtor. During the pendency of suit, the decree-holder attached before judgment some property said to be belonging to defendant-judgment debtor. The attachment was effected on 5-5-1985. Thereupon during the pendency of the suit itself the appellant filed I. A. No. 322 of 1985 under Order 38, Rule 8, C. P. C. , seeking raising of attachment on the ground that the appellant is the owner of the said property, he purchased the said property under a regular registered sale deed dated 21-2-1985 and the second respondent judgment debtor had no interest or right over the said property. The said attachment raising petition in I. A. No. 322 of 1985 stood dismissed for default of appellant-claimant on 22-4-1986. Subsequently when the attached property was brought to sale, nearly four years after the date of attachment, the appellant filed an application in E. A. No. 104 of 1990 under order 21, Rule 58, C. P. C. , requesting the trial Court to raise the attachment in question. The claim application was contested by the first respondent-decree holder on various grounds. Both parties adduced evidence before Executing Court. It dismissed the claim application by its order 6-8-1993. The appellant preferred an appeal before subordinate Judge, Peddapuram. The lower appellate Court, on a consideration of various contentions raised before it, dismissed the appeal confirming the order passed by the trial Court dismissing the claim application. Aggrieved thereby, the appellant preferred the present appeal.

( 3 ) AT the time of admission of this appeal, the learned admission Judge treated the following point formulated in the memorandum of grounds of appeal as substantial question of law that arises for consideration in the present appeal. "the applicant having purchased the schedule property under a registered sale deed prior to attachment before judgment and has been in possession, no collusion can be attributed".

( 4 ) POINT : The two Courts below gave more than one reason for dismissing the claim application filed by appellant. The appellant is a close relation of judgment debtor second respondent. The fact remains that the property attached originally belonged to judgment-debtor. Claimant pleads that he purchased it from judgment- debtor for a valuable consideration. The two courts below observed that the appellant did not produce the original sale deed and the sale transaction is a collusive and nominal transaction. The two Courts below further held that in view of the principle of res judicata, the claim application before the executing Court is not maintainable as the earlier petition filed in L. A. No. 322 of 1985 was dismissed for default of the claimant. The learned counsel for the appellant contended that as the earlier application in I. A. No. 322 of 1985 was not disposed of on merits by the trial Court, the fact of dismissal of the said application does not attract the provision contained in Section 11, C. P. C. There may be some force in the said contention. This aspect need not be decided in this appeal. He also contended that the provision in Order 2, Rule 2, C. P. C. , does not apply to the facts of the present appeal. On a consideration of the provision in Order 2, rule 2, C. P. C. , I accept the said contention. It is true that the sale deed in favour of the appellant is anterior to the date of attachment in question. It is also true that on the solitary circumstance that the market value mentioned in the registers maintained

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