H.S. Nanjundappa Vs. G.S. Channegowda & Anr.
EmailAppeal: Arising out of SLP (C) No. 8144 of 1999
Petitioner: H.S. Nanjundappa
Respondent: G.S. Channegowda & Anr.
Apeal: Arising out of SLP (C) No. 8144 of 1999
Judges: A.P. MISRA & DORAISWAMY RAJU, JJ.
Date of Judgment: Sep 15, 2000
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Order 21, Rule 63 – Auction sale – Objections – Auction held on 2.6.78 – Objector claiming purchase on 27.9.94 from brother of judgment-debtor, after partition – Partition and purchase, both subsequent to auction-sale – Still, High Court directing inquiry. Held that High Court was in error. Objector stepped into the shoes of judgment-debtor and got only such rights as the judg-ment-debtor had on the date he sold property.
Held:
The objector steps in the shoes of the judgment-debtor and has only such right that the judgment-debtor had on the date he sold this property. In the present case, the attachment by the court itself of the said property was on 5th June, 1977 and the auction sale was on 2nd June, 1978. On the other hand, the partition, which is the foundation of the claim of the objector through Gurusiddappa is itself dated 7th October, 1978 which is after the attachment and the aforesaid auction sale by the court. Hence, the purchaser of property, the objector, on 27th September, 1994 could receive only that right which Gurusiddappa had on this date in this property. By this date even Gurusiddappa had no right, nor his brother had any right over this property. How can an attached property be taken out of the clutches of the court by
understanding between two brothers through partition, especially when it is attached.
understanding between two brothers through partition, especially when it is attached.
(Para 8)
JUDGEMENT:
ORDER
1. Leave granted.
2. Heard learned Counsel for the parties.
3. The present appeal is by decree holder-auction purchaser of the suit property. Respondent no.2 is the judgment-debtor and re-spondent no. 1 is the objector in the execution proceedings. The trial court decreed the suit with an order of attachment, some time in the year 1977. In execution proceedings, the suit proper-ty was sold in a court auction after obtaining permission of the court. The auction was held on 2nd June, 1978 in which the ap-pellant purchased the same.
4. The objector’s claim is, he purchased this property from Gurusiddappa, the brother of the judgment-debtor on 27th Septem-ber, 1994. His further case is that his aforesaid vendor got this suit property in partition on the 7th October, 1978 from the judgment-debtor.
5. The trial court rejected the objection of respondent no. 1 and held no inquiry was required to be made in the execution proceed-ings, as this property was already under attached since 5.6.1977.
6. The submission for the appellant is, trial court rightly held that no inquiry is necessary on the facts and circumstances of this case. The facts are not in dispute. The objector has pur-chased this property from the brother of judgment-debtor which is subsequent to the auction sale, partition itself is subsequent, to both attachment of the property and auction sale of the said property.
7. On the other hand, submission for the objector is that he is bona fide purchaser, hence his sale should not be set aside.
8. Having heard learned Counsel for the parties, we find that the High Court committed error in setting aside the judgment and order of the executing court and directing inquiry to be made. The objector steps in the shoes of the judgment-debtor and has only such right that the judgment-debtor had on the date he sold this property. In the present case, as we have observed, the at-tachment by the court itself of the said property was on 5th June, 1977 and the auction sale was on 2nd June, 1978. On the other hand, the partition, which is the foundation of the claim of the objector through Gurusiddappa is itself dated 7th October, 1978 which is after the attachment and the aforesaid auction sale by the court. Hence the purchaser of property, the objector, on 27th September, 1994 could receive only that right which Gurusid-dappa had on this date in this property. By this date even Guru-siddappa had no right, nor his brother had any right over this property. How can an attached property be taken out of the clutches of the court by understanding between two brothers through partition, especially when it is attached.
9. Hence for the said reason, we set aside the impugned order of the High Court and confirm that of the executing court. However, we make it clear, any observation made herein and so far as any claim of the objector as against his vendor Gurusiddappa, if any, is without prejudice. With the aforesaid observation, the present appeal is allowed. Costs on the parties.
1. Leave granted.
2. Heard learned Counsel for the parties.
3. The present appeal is by decree holder-auction purchaser of the suit property. Respondent no.2 is the judgment-debtor and re-spondent no. 1 is the objector in the execution proceedings. The trial court decreed the suit with an order of attachment, some time in the year 1977. In execution proceedings, the suit proper-ty was sold in a court auction after obtaining permission of the court. The auction was held on 2nd June, 1978 in which the ap-pellant purchased the same.
4. The objector’s claim is, he purchased this property from Gurusiddappa, the brother of the judgment-debtor on 27th Septem-ber, 1994. His further case is that his aforesaid vendor got this suit property in partition on the 7th October, 1978 from the judgment-debtor.
5. The trial court rejected the objection of respondent no. 1 and held no inquiry was required to be made in the execution proceed-ings, as this property was already under attached since 5.6.1977.
6. The submission for the appellant is, trial court rightly held that no inquiry is necessary on the facts and circumstances of this case. The facts are not in dispute. The objector has pur-chased this property from the brother of judgment-debtor which is subsequent to the auction sale, partition itself is subsequent, to both attachment of the property and auction sale of the said property.
7. On the other hand, submission for the objector is that he is bona fide purchaser, hence his sale should not be set aside.
8. Having heard learned Counsel for the parties, we find that the High Court committed error in setting aside the judgment and order of the executing court and directing inquiry to be made. The objector steps in the shoes of the judgment-debtor and has only such right that the judgment-debtor had on the date he sold this property. In the present case, as we have observed, the at-tachment by the court itself of the said property was on 5th June, 1977 and the auction sale was on 2nd June, 1978. On the other hand, the partition, which is the foundation of the claim of the objector through Gurusiddappa is itself dated 7th October, 1978 which is after the attachment and the aforesaid auction sale by the court. Hence the purchaser of property, the objector, on 27th September, 1994 could receive only that right which Gurusid-dappa had on this date in this property. By this date even Guru-siddappa had no right, nor his brother had any right over this property. How can an attached property be taken out of the clutches of the court by understanding between two brothers through partition, especially when it is attached.
9. Hence for the said reason, we set aside the impugned order of the High Court and confirm that of the executing court. However, we make it clear, any observation made herein and so far as any claim of the objector as against his vendor Gurusiddappa, if any, is without prejudice. With the aforesaid observation, the present appeal is allowed. Costs on the parties.
