- (1.) This appeal by the decree holder is directed against the order, dated 23-11-1976, passed by the Prl. Civil Judge, Shimoga, in Ex. A No. 17/1974, on his file, dismissing the appeal of the decree holdex on confirming the order, dated 13-8-1974, passed by the Munsiff, Shikaripur, in Exn. No. 99/1973, on his file dismissing the execution petition against the sixth judgment debtor, namely, District Forest Officer, Sagar Division, Sagar. Shiralkoppa Town Municipality obtained a decree against respondents 1 to 5 in OS 28/1961 on the file of the Munsiff, Shikaripur and in execution of that decree instituted Ex. Case No. 99/73 for the recovery of Rs. 3,207-08 p. by the sale of the scheduled property on which a charge was created in the decree.
(2.) The suit was instituted for recovery of taxes on the suit property. The sixth judgment debtor, namely, the District Forest Officer, Sagar Division, Sagar, resisted the execution by contending that he was not a party to the proceedings in OS No. 28/ 1961 ; that he purchased the suit property even before the suit was instituted and hence no charge could be created on the suit property as on the date of the auction he was the owner of the suit property by purchase in the public auction. The learned Munsiff upheld the contention and dismissed the petition against the sixth judgment debtor. Aggrieved by the said order the Municipality went up in appeal before the Prl. Civil Judge, Shimoga, in Exn. A No. 17/1974. The learned Civil Judge raised the following points as arising for his consideration in the appeal. 1) Whether the decree holder can proceed against the petition schedule property for the recovery of the decretal amount on the ground that a charge has already been created on the property ? 2) Whether the charge created on the said property is proper ? 3) Whether the order of the learned Munsiff calls for interference ? 4) What order ? Re assessing the evidence on record the learned Prl. Civil Judge, held that since the sixth judgment-debtor in the execution petition became the owner of the property even earlier to the filing of the suit, no charge could be created on the suit property as sixth judgment debtor was not made a party to the suit. In that view he dismissed the appeal, and confirmed the order passed by the Munsiff. Aggrieved by the said order the Municipality has come up with the above second appeal before this Court.
(3.) This Court while admitting the appeal has raised the following point of law as arising in this case : "Whether the Court below was right in holding that the sixth respondent had become the owner of the property in question prior to the date of the institution of the suit in OS No. 28/1961 ? It is on record that the suit property was sold, for the balance due from the owners towards the purchase of timber, in public auction, by the Deputy Commissioner on 27 6-1960. Recovery procedure was taken as if the money due was arrears of land revenue. The property was purchased by the sixth respondent, namely, the District Forest Officer. The sale was confirmed on 6-12-1960 and possession was given on 4-12 1969 The present suit, namely, OS No. 28/1961 was instituted by the Municipality against judgment debtors 1 to 5 on 20-1 1961. That being so it was contended by the District Forest Officer that even before the suit was instituted, the property was sold in his favour and sale was confirmed on 6 12 1960 and therefore he became owner of the suit, property on 6-12-1960, much prior to the institution of the suit on 20-1-1961. In that view, it was submitted that a charge could not be created on the property for arrears of tax prior to the sale in his favour as he was act made a party to the suit. Both the Courts below have upheld that contention.;