A purchaser of property after an attachment order stands as a representative of the judgment-debtor; consequently, all challenges to the court auction must be adjudicated by the executing court under Section 47 of the Code of Civil Procedure, rendering separate suits against such proceedings barred.

JUDGMENT :

MOHAMMED NIAS C.P., J.

1. The defeated plaintiff in O.S.611/1998 on the files of the First Additional Sub Judge, Ernakulam, is the appellant.

2. Plaintiff/Appellant had purchased the plaint schedule property having an extent of approximately 11 cents comprised in Survey No. 212(9) A and (9) B of Edappally South Village belonging to the first respondent by virtue of sale deed No.3769/81 dated 18.06.1981, for a consideration of Rs. 1,11,000/-. He had also spent an amount of Rs.15,000/- towards stamp duty and an amount of Rs. 2,200/- and Rs. 3,500/- for registration. He purchased the property after verifying the original title deed and the encumbrance certificates dated 21.03.1994 and 17.10.1994 that did not reveal any encumbrance for the period from 01.01.1981 to 06.10.1994. The original title deed in favour of the first respondent was also handed over to the plaintiff. The husband of the plaintiff/appellant had also availed a loan by offering the plaint schedule as collateral security by depositing the original title deed with the bank.

3. While so, on 11.10.1998, when the appellant’s husband visited the plaint schedule property, he found a new gate installed on the compound wall of the plaint schedule and on enquiry, he understood that the property was purchased by the second respondent in an auction sale held on 29.11.1996, pursuant to the decree in O.S.898/1991 of the Sub Court, Ernakulam. On further enquiry, it was revealed that the plaint schedule properties were attached before judgment dated 31.03.1992 as per order in IA No. 1184/1992 and O.S.898/1991, filed by the third respondent bank against the first respondent and another. In fact, the loan was secured by an equitable mortgage of 4.236 cents of property in Survey No. 674 of Elamkulam Village owned by K.J. Thomas, who was the second defendant in that suit. Since the loan was defaulted, the third respondent bank filed a suit on 18.12.1991.

4. The plaintiff contends that the encumbrance certificate obtained by him did not disclose the order of attachment before judgment and that he is a bona fide purchaser for valuable consideration and without notice. The third respondent had obtained an ex parte decree in O.S.898/1991 and brought the plaint schedule property to sale without proceeding against the decree schedule property. The plaint schedule properties were never offered as collateral security. The second respondent purchased the properties in the auction held on 29.11.1996 for an amount of Rs.5,55,000/-. The excess amount of Rs.2,89,233/- was deposited in the execution court. The plaintiff alleged fraud and collusion between the defendants in bringing the plaint schedule property to auction sale. Accordingly, the suit was filed for a declaration that the sale certificate dated 10.04.1997 in O.S.898/1991 of the Sub Court, Ernakulam, in respect of the plaint schedule property in favour of the second respondent is null and void and also to cancel the same. The plaintiff further claimed an amount of Rs. 10,66,875/- with 12% interest per annum towards damages.

5. The first respondent was set ex parte. The second defendant contended that the suit was not maintainable and was barred by limitation. It was contended that the sale deed relied on by the appellant was the result of a collusion between the appellant and the first respondent by ignoring the earlier order of attachment in O.S.898/1991. The order of attachment was made absolute on 30.0