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ANDHRA PRADESH HIGH COURT
L. Narasimha Reddy and M.S.K. Jaiswal, JJ.
Ch. Venkata Rao & Ors. —Appellants
versus
J.R. Rameshji & Anr. —Respondent
L.P.A. No. 112 of 2002
Decided on 24.12.2013
Counsel for the Parties:
For the Appellants:Sri G. Krishna Murthy, Advocate.
For The Respondents:Sri S.Srinivasa Reddy, Advocate.
IMPORTANT POINT
If the JD has no saleable interest in the property the same could not be attached.
Headnote:(i) Civil Procedure Code 1908—Order 21, Rule 58—Attachment of property in execution—Once the property of J.D. is attached, the owner of the same could not sell the same in favour of any third party—Sale of such attached property, can be ignored by the executing court, if it is found that the owner was in the knowledge of attachment of such property.
(ii) Civil Procedure Code 1908—Order 21, Rule 58—Saleable interest—Property already sold prior to attachment—Since the JD had left no saleable interest in the property it could not be attached and sold in the execution proceeding.
Facts of the case
Where the appellant filed suit for recovery of Rs. 38000/- which was decreed and execution proceedings initiated and order of attachment passed on 26.04.1988. Respondent no. 1 filed application under Order 21 Rule 58 contending that the JD had sold the suit property on 15.09.1986, and that the JD had no saleable interest in the property and the same could not be attached.
Findings of the Court
The plea of the appellants was 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 O.S. No. 25 of 1979 on the file of the Subordinate Judge filed by one J.B. Bodo & Company against the 2nd respondent. Despite such attachment, the 2nd respondent sold the property on 15.09.1986 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 was 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 the 1979. The plea that the appellant had proportionate charge would be available only if the attachment was subsisting when the order of attachment was passed.
Result: Appeal dismissed.
L. Narasimha Reddy, J.—The 1st appellant filed the Suit in O.S. No. 62 of 1980 in the Court of the 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.
2. 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 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.
3. 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.
4. 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’.
5. 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,
