IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2002 CORAM: THE HONOURABLE MR. JUSTICE K. GOVINDARAJAN S.A.No.1613 of 1998 B.Chinnasamy Naidu Appellant Vs. C.S.Mani Respondent Appeal against judgment and decree in A.S.No.2/1998 dated 5.8.1998 on the file of Sub Court, Tiruvallur, confirming the judgment and decree in O.S.No.458/85, dated 7.11.97 on the file of District Munsif Court, Tiruvallur. ! For Appellant .. Mr.S.Navaneethakrishnan ^ For Respondent .. Mr.K.Yamunan : JUDGMENT 1.The unsuccessful plaintiff before the Courts below has filed this Second Appeal. 2.Originally the suit property belonged to one Mokshammal. She sold 1.47 acres of land under Ex.A3 to one Chandbasha under a sale deed dated 18.12.1980 and another 75 cents to one Chandra under Ex.A4 sale deed dated 17.2.78. The said Chandra sold the property purchased under Ex.A4 to Kiliammal under Ex.A5 sale deed dated 9.4.81. The plaintiff purchased the properties from Chandbasha under Ex.A1 sale deed dated 27.1.82, and from Kiliammal under Ex.A2 sale deed dated 6.3.82. on the basis of the abovesaid sale deeds, the plaintiff claims rights in the suit property. 3.The defendant filed a suit in O.S.No.29/71 for recovery of money from Mokshammal and obtained a decree against her on 28.2.72. Pursuant to the decree, he filed E.P.No.466/74 and obtained an order of attachment with respect to the abovesaid properties on 29.12.74. Subsequently, pursuant to the enactment of The Debt Relief Act, the Execution Petition was closed on 15.2.75. According to the plaintiff, the Court has directed the order of attachment to be continued for a period of six months. According to the defendant, no such period had been mentioned. After moratorium period came to an end, the defendant filed another Execution Petition in E.P.No.276/80. Admittedly, no fresh application was filed for attachment. The abovesaid properties were brought for sale in the said Execution Petition, and the defendant himself purchased the properties in court auction sale held on 6.6.84, which was confirmed on 30.7.85. 4.It is also relevant to mention here that the said Mokshammal filed E.A.No.1193/85 under Sec.47 of the Code of Civil Procedure to set aside the sale in E.P.No.276/80. Though originally the said Application was allowed, in the Appeal filed by the defendant in C.M.A.No.7/86 , the Sub Court, Tiruvallur reversed the order on 15.3.93. Aggrieved against the same the said Mokshammal filed Revision in C.R.P.No.2297 /93. The learned Judge confirmed the order of the lower court and dismissed the Revision. So, the fact remains that the said Mokshammal could not succeed in her attempt to set aside the sale in favour of the defendant by filing an Application under Sec.47 of C.P.C. 5.Even the dispute regarding the scope of the order dated 15.2.75 in E.P.466/74 with respect to the period for which the order of attachment was extended, JAGADEESAN,J., in C.R.P.No.2864/95, filed at the instance of the defendant, directed to issue notice to the parties and pass orders with respect to the clarification regarding the corrections made by the lower court in the suit register in respect of the order dated 15.2.7 5, in E.P.No.466/74. After such remand, I am able to see, the lower court found that that the order of attachment had been extended only for a period of six mo nths, and not indefinitely as alleged by the defendant. 6.On the basis of these facts, the defendant contested the suit in O.S.458/85,on the file of the District Munsif Court, Thiruvallur filed by the appellant claiming title in the suit property contending inter alia that the plaintiff cannot claim any right in the suit property on the basis of the sale deed executed in his favour. 7.The trial Court accepting the case of the defendant dismissed the suit. So the plaintiff filed appeal in A.S.No.2/98 on the file of the Sub Court, Tiruvallur. The learned Sub Judge also confirmed the judgment and decree of the trial court and dismissed the Appeal. Hence this Second Appeal. 8.The substantial questions of law that were formulated in this Second Appeal are as follows:- (1)Whether the courts below are correct in holding that the prior order of attachment would continue even beyond the period of six months (i.e. after 15.8.1975) when the executing court had specifically ordered while closing the E.P. that the attachment to continue only for a period of s six months, especially when it is empowered to do so under the provisions of Order 21, Rule 57(1) of Civil Procedure Code? (2)Had not the courts below committed an error under law in holding that Order 21, Rule 57 could be made applicable only to cases where the execution petition is dismissed for default on the part of the decree holder and not to other cases? (3)Had not the courts committed an error under law, having agreed that the executing court had allowed the prior attachment order to continue only for six months, in ignoring the same while deciding the issue raised by the parties based on the same? 9.Learned counsel appearing for the appellant submitted that the sale deed by Mokshammal/judgment debtor under Exs.A3 and A4 were executed when there was no order of attachment at the instance of the defendant, and the order of attachment had ended on 15.8.78 itself. The defendant brought those properties for court auction sale and purchased the same though the said Mokshammal had no title to the suit property on the said date. Referring to provisions of Order 21 Rule 5 7(1) of C.P.C., the learned counsel submitted that the order of attachment was restricted only for the said period and so the sale deed executed in favour of the plaitiff's vendors after that period cannot be ignored by the defendant. Referring to the order dated 15.2.75 in E. P.No.46 6/74, learned counsel also submitted that the original order of attachment passed by the court extending the attachment was only for a period of six months, and in the suit register, by mistake, it was mentioned as it is for unrestricted period ,and the same was subsequently rectified and so the defendant cannot take advantage of the said mistake committed by the clerical staff. He has also submitted that after the remand by this Court, as stated above, the lower court has found that the order of attachment was extended only for a period six months and so it has to be taken that the original order itself was only for a period of six months. On that basis the learned counsel further submitted that the courts below have committed an error in dismissing the suit on the basis that the sale deed executed in favour of the plaintiff's vendors cannot be sustained. 10.Leaned counsel appearing for the respondent/defendant submitted that originally the court did not restrict the period of attachment in the order dated 15.2.75, and the subsequent Execution Petition in E.P.No.276/80 is the continuation of the earlier Execution Petition and so no fresh application for attachment need be filed, as the subsequent E.P. should be taken as a continuation of the earlier Execution Petition. He also submitted that the court auction sale in favour of the defendant is only voidable and not void and the said Mokshammal filed the Application under Sec.47 C.P.C. which had been rejected and so the appellant/plaintiff cannot now re-agitate the matter regarding the validity of the court auction sale. 11.On the basis of the facts set out earlier, and the arguments submitted by the learned counsel, we have to decide whether the plaintiff can claim any title in the suit properties under Exs.A1 dated 27.1.8 2 and A2 dated 6.3.92 respectively. 12.It is not in dispute that the defendant filed the suit in O.S.No.29/71 against the original owner of the property, Mokshammal for recovery of money and the said suit was decreed on 28.2.72. The defendant by filing the Execution Petition in E.P.No.466/74 obtained an order of attachment of the suit property on 29.12.74. Pursuant to the introduction of the Debt Relief Act and the enforcement of moratorium, the said Execution Petition was closed on 15.2.75. While closing the said Execution Petition, the lower court directed the attachment to be continued for 6 months. If it is so, the attachment came to an end on 14.8.75. Subsequently, another Execution Petition was filed in E.P.No.276/80 and admittedly no fresh attachment was sought for. The suit property and other properties were brought to sale and the defendant himself purchased the same in the auction held on 6.6.84, which had been confirmed on 30.6.85. 13.Before going into the main issue, the controversy regarding the scope of the order regarding attachment in E.P.No.466/74 while closing the said Execution Petition on 15.2.75 has to be decided. 14.According to the plaintiff, the lower court has extended the attachment only for a period of 6 months. According to the defendant, the attachment was extended without restricting any time-limit. The defendant has come forward with such a plea on the basis of the certified copy obtained by him regarding the order dated 15.2.75. The plaintiff has come forward with the plea that though the Presiding Officer while passing the order dated 15.2.75 extended the attachment only for a period of 6 months, the clerk by mistake has not properly made the entry and so the entry had been amended in accordance with the original order. Learned counsel appearing for the appellant submitted that the respondent/defendant cannot take advantage of the mistake committed by the clerk while making the entry in the suit register. The said dispute came to this Court by way of Revision in C.R.P.No.286 4/9 5, and the learned Judge in the order dated 22.12.1995, directed the lower court to give an opportunity to the parties and decide about the correctness of the entry made in the suit register with respect to the order dated 15.2.75 passed in E.P.No.466/74. It is not in dispute that after remand the lower court had found that the said entry was a mistake and the original order passed by the Presiding Officer on 15.2.75 was extended only for a period of 6 months, and that order has become final. 15.So, now we have to proceed with the case that the executing court while closing the E.P.No.466/74 on 15.2.75, extended the attachment only for a period of 6 months, and thereby the said attachment came to an end on 14.8.75. 16.Admittedly, after the closing of E.P.No.466/74 no order of attachment was in force and the defendant did not take any steps to revive the said attachment, though a fresh application in E.P.No.276/8 0 was filed. So, from the facts set out above, it is clear that the judgment-debtor Mokshammal transferred her title in the suit property under the sale deeds Exs.A3 and A4 dated 18.12.80 and 17.2.78, and from the purchasers of the said properties, the plaintiff derived title by getting sale deeds on 27.1.82 and 6.3.82 under Exs.A1 and A2. The defendant purchased the suit property in the court auction sale only on 6.6.84. So, on the date of the sale of the suit property in court auction, the judgment-debtor, Mokshammal did not have any right or title in the suit property and the same was transferred to the plaintiff. 17.It is well settled that sale of immovable property without previous attachment under Or.21, Rule 57 of C.P.C. is not null and void and that omission to attach before sale is only an irregularity which renders the sale liable to be set aside if substantial injury is proved. So it cannot be said that a subsisting attachment is an essential condition of a valid judicial sale in the sense that without it the sale would be a nullity. The abovesaid view of mine is supported by the decisions in SWAMINATHA v. KRISHNASWAMI, A.I.R. 1947,Madras 213 and in Official Receiver v.Kadir Meera Hussain, 1975-II M.L.J. -1. So, the plaintiff cannot question the court auction sale only on the ground that there was no fresh attachment after the attachment effected in the earlier Execution Petition ceased to exist. 18.But, in the present case, on the date of the court auction sale, the judgment-debtor did not have any right in the said properties. So, the question that has to be answered is, can the defendant claim any right in the said properties on the basis of the purchase in court auction sale held on 6.6.84. 19.It is no doubt true even with reference to execution of money decree, if there is any sale to the third party of a property by judgment-debtor during the currency of attachment, the said thirdparty purchaser cannot claim any right in preference to the right of the purchaser in the court auction, and he is bound by the decision of the executing court, though not a party to it. The Division Bench of this Court in the decision in Venkatachalapathi v. Venkatappayya, A.I.R.19 3 2 Madras 86, had an occasion to deal with the said issue while disposing of the correctness of the order passed by the lower court in the application filed under Sec.47 Civil P.C., and has held as follows:"The present is not a case where the proceedings pending before the Court is only an execution application to attach property. Further proceedings by way of actual attachment had taken place, and the proceedings by way of attachment of the properties in dispute took place in a Court of competent jurisdiction; it was when those proceedings were pending that the present plaintiffs purchased those properties from the judgment-debtor; prima facie they must be taken to have purchased it subject to the result of those proceedings. The principle of the doctrine of lis pendens would apply to such a case. If for any reason the proceedings that were relating to the properties in question prior to the plaintiff's purchase should prove abortive and infructuous, and the decree-holder had to take entirely fresh execution proceedings after the plaintiff's purchase, then there would be force in the respondents' contention that such fresh execution proceedings would not be binding on them unless they were made parties to the same. On the other hand, it is not open to a party to a proceeding to nullify the effect of proceedings already properly taken with reference to that property by transferring the same to strangers. As already remarked it does not really matter whether the actual decisions of the Courts as to the effect of the past proceedings is given only after the plaintiff's purchase of the adjudication is really with reference to matters that happened before such purchase and regarding the effect of the legal proceedings that were prior to the same. To safeguard the purchasers' rights, the purchasers should in such circumstances get themselves impleaded as parties". 20.The same principle has been laid down by the learned Judge in the decision in Palaniappa Chettiar v. Muthuveerappa Chettiar, 1965II M.L.J. 499, in a case where after an execution petition filed by a decree-holder against the judgment-debtor was dismissed with the endorsement "petition dismissed. Attachment to continue for four months", and before the expiry of the aforesaid four months period, the attached properties were sold in execution of another decree obtained by a third party against the same judgment-debtor and the proceeds of the sale were brought into court. While dealing with the said fact, the learned Judge held that the decree-holder in the said case would be entitled to a share in the proceeds realised by the court in another execution petition. 21.Learned counsel for the respondent relied on the decision of the Apex Court in Nancy John Lyndon v. Prabhati Lal, AIR 1987 S.C. 2061, to support his submission that the subsequent restoration of execution application dismissed for default would amount to revival of attachment also, and if there is any sale made between the period from the date of dismissal of the execution application for default and the date of restoration, it would be void. In the said decision, the Hon'ble Judges have dealt with the case where attachment was levied on 3.8.1970 in the execution application to execute the money decree and the execution petition came to be dismissed for default on 9.5.1972, and in the meanwhile the judgment-debtor sold a portion of the attached property on 14.9.70, and subsequently on 16.9 .197 5, the said application was restored, and the said properties were again attached on 16th September, 1975. On the basis of the said facts, the Hon'ble Judges have held as follows: "10.In the present case both, the sale by the judgment-debtor to Bharat Shamshere Jung Bahadur Rana and the sale by Bharat Shamshere Jung Bahadur Rana to the respondent, were effected during he subsistence of the attachment and before the Title Execution Case was dismissed for default. In our view, even if a doubt were to be entertained as to whether an order for restoration of the suit or execution application would have the effect of restoring the attachment retrospectively so as to affect alienation made during the period between dismissal of the suit or execution application and the order directing the restoration it is clear that an order of restoration would certainly restore or revive the attachment for the period during which it was in subsistence, namely, prior to the dismissal of the suit or execution application." But the abovesaid decision decided on the abovesaid facts is not applicable to the facts of the present case. 22.In the present case, admittedly, there was no attachment when the title with respect to the suit property was passed on to the plaintiff. By filing subsequent execution petition in E.P.No.276/80, the earlier attachment cannot be said to have been revived and no fresh attachment was ordered, though the earlier execution petition was dismissed for the purpose of statistics. 23.In the decision in Kuppuswam;y (minor) v. Rangai Goundan, AIR 196 2 Mad.383, while rejecting the conclusion of the District Judge holding that a fresh attachment on the property was necessary when the earlier execution petition was closed for statistical purpose with a direction that the attachment would subsist for one year, and subsequently the said execution petition was revived, the attachment must be deemed to have been revived, the learned Judge has held therein as follows:- "I am not disposed to agree with this reasoning. Even where an execution application is dismissed by the executing Court under Order XXI, Rule 57, the Court is bound to make a suitable order with regard to the subsistence of the attachment or otherwise. Whether such a dismissal of the execution application is for statistical purposes or not, the order of the court in so far as the attachment is concerned cannot be linked up with the scope of the order on the execution application. This order distinctly gives a definite life to the subsistence of the attachment and thereafter the attachment ceases. I can see no provision of law whereunder an attachment which was brought to a termination by an order of Court can be revived". 24. It is settled principle regarding the execution proceedings that the attachment of property does not create either a charge or lien in favour of the attaching decree-hodler, and it does not create any interest in the property. The purchase of property from the judgment-debtor during the currency of attachment with the knowledge of the proceedings is subject to the result of the said proceedings. The doctrine of lis pendens applies in such circumstances. But, in the present case, as stated already, the Execution Petition filed in E.P.No.46 6/74 was closed on 15.2.75. Even applying the decision cited above, it can be said that the said Execution Petition could be taken as in existence only till the attachment was in force and that attachment made had come to an end on 15.8.75. So the respondent-decree holder cannot come forward with the plea that the sale of the property by the judgment-debtor after that period (15.8.75) is affected by the principle of lis pendens and so the subsequent court auction sale would be binding on the plaintiff. This view of mine is supported by the decision of the Division Bench of this Court in Venkatachalapathi Rao v. Venkatappayya, AIR 1932 Mad. 86 (cited supra), holding as follows:- "In our opinion, when proceedings by way of attachment of immovable property in execution of a money decree have been taken by the executing Court, in an execution application filed by the decreeholder, any question that might be raised whether the proceedings taken by the Court did amount to a valid attachment or not is one that falls to be decided by the Court in the execution department; any stranger purchasing the property from the judgment-debtor in those circumstances would only take the property subject to the Court's decision as to the effect of the proceedings actually taken before his purchase. Such purchaser would be bound by the Court's decision of the question in the execution department though he was not a party to the same. To hold otherwise would be to impair the rights of the decree-holder and to enable the judgment-debtor to set at naught decisions of courts competent to adjudicate on the rights of parties, and give the go-by to the principle of law giving finality to decisions of Courts in matters properly before them." 25.In the abovesaid decision it is also held that "In our opinion, when proceedings by way of attachment of immoveable property in execution of a money decree have been taken by the executing Court in an execution application filed by the decreeholder, any question that might be raised whether the proceedings taken by the Court did amount to a valid attachment or not is one that falls to be decided by the Court in the execution department; any stranger purchasing the property from the judgment-debtor in those circumstances would only take the property subject to the Court's decision as to the effect of the proceedings actually taken before his purchase. Such purchaser would be bound by the Court's decision of the question in the execution department though he was not a party to the same. To hold otherwise would be to impair the rights of the decree-holder and to enable the judgment-debtor to set at naught decisions of Courts competent to adjudicate on the rights of parties, and give the go-by to the principle of law giving finality to decisions of Courts in matters properly before them. The present is not a case where the proceeding pending before the court is only an execution application to attach property. Further proceedings by way of actual attachment of the properties in dispute took place in a Court of competent jurisdiction; it was when those proceedings were pending that the present plaintiffs purchased those properties from the judgment-debtor; prima facie they must be taken to have purchased them subject to the result of those proceedings. The principle of the doctrine of lis pendens would apply to such a case". 26.While following the said decision, and considering the above conclusion, the Division Bench of this Court in Venkata Rao v. Surya Rao Bahadur, AIR 1950 Mad. -2, held as follows:- "The last sentence in the above quotation makes it quite clear that if there were to be a fresh execution proceeding the adjudication in the earlier execution proceedings would not bind the purchaser unless he was made a party to it. It is unnecessary for us to consider whether even in the same execution proceedings if an order was passed against the judgment-debtor after he had parted with his interests in the property which was attached, the purchaser would be bound by such an order. It is enough for the purpose of the decision of this case to point out that in the present case the execution proceedings in which the decision in Exs.D-1 and D-3 was given were initiated long after the plaintiff obtained his mortgage. The plaintiff therefore would not be bound by the order in Exs.D-1 and D-2 and the principle of the decision does not apply". So, in view of the said principles laid down in the abovesaid