"C.R."

1. Following points arise for a decision in this Writ Petition:

(i) Whether an attachment over immovable property ceases to have effect when that property is sold in auction in execution of another decree?

(ii) Whether the attachment would revive when the defendant whose property was attached later purchased the property from the auction purchaser?

2. Short facts necessary for a decision of the case are: Petitioner filed O.S. No.94 of 1989 in the court of learned Sub Judge, Irinjalakuda against predecessor-in-interest of respondent Nos.2 to 8 and others (hereinafter referred to as "the defendant) and in that suit, property of defendant was attached (before judgment) on 31.03.1989. There was also another suit against the defendant (O.S. No.1156 of 1991) in the same court where a decree for recovery of money was passed against defendant and others. Decree holder in O.S. No.1156 of 1991 sought execution of his decree and the same property belonging to the defendant was attached on 05.12.1994 and sold in court auction on 21.12.1995. That property was purchased by respondent No.1-decree holder in O.S. No.1156 of 1991. Respondent No.1 transferred that property to the defendant on 11.03.1997 and on the next day, defendant transferred it to respondent No.9. On 14.06.1990 petitioner got a decree in O.S. No.94 of 1989 against the defendant for recovery of money. Petitioner filed E.A.No.1368 of 2003 in O.S. No.1156 of 1991 to set aside the court sale. That application was dismissed. Petitioner then filed E.A. No.1563 of 2009 in E.P. No.1406 of 1994 in O.S. No.1156 of 1991 for a declaration that petitioner has right over the decree schedule property and to cancel the sale certificate issued to respondent No.1 in O.S.No.1156 of 1991. That application was opposed by the contesting respondents and by the impugned order the executing court dismissed it since property referred to in the application was sold in court auction 21.12.1995, sale was confirmed and hence no claim under Order XXI Rule 58 of the Code of Civil Procedure (for short, "the Code") could be entertained, claim vide E.A. No.1563 of 2009 is barred by limitation and that for the very same relief petitioner had filed E.A. No.1368 of 2003 which ended in dismissal. Order of executing court on I.A. No.1563 of 2009 is under challenge in this Writ Petition. Learned counsel for petitioner contends that decision of the executing court is not correct. According to the learned counsel property belonging to the defendant was attached in O.S. No.94 of 1989 on 31.03.1989 and hence when the defendant again acquired title over the property from respondent No.1-decree holder in O.S. No.1156 of 1991 as per sale deed dated 11.03.1997 attachment over the property revived. Hence transfer made by the defendant in favour of respondent No.9 is void as against claim of petitioner arising from attachment in O.S. No.94 of 1989 in view of Section 64 of the Code. It is argued that finding of the executing court that dismissal of E.A. No.1368 of 2003 affected maintainability of E.A. No.1563 of 2009 is erroneous since the latter challenged court sale and all proceeding subsequent thereto which could be done under Sec.151 of the Code. Learned counsel argues that label given to I.A. No.1563 of 2009 as one under Order XXI Rule 58 of the Code should not have deterred the executing court from granting relief to the petitioner by applying the proper Section of law.

3. It is not disputed that petitioner had attached the property in O.S.No.94 of 1989 on 31.03.1989 before judgment and he obtained a decree in that case against the defendant on 14.6.1990. In execution of decree in O.S. No.1156 of 1991 against defendant and others respondent No.1 attached the same property on 05.12.1994 and that property was purchased by respondent No.1 in court auction on 21.12.1995.

4. Then the question is whether attachment effected in O.S. No.94 of 1989 survived after the court sale in O.S. No.1156 of 1991 on 21.12