Decided on July 29,1969

BYRAPPA Appellant
S.MANI Respondents

Cited Judgements :-



- (1.)On March 19, 1959 defendant 4 Anjanappa sold the suit properties to a certain Byrappa for a sum of Rs. 5,000. It is on the basis of this sale deed that Byrappa who is now dead brought a suit for declaration that he was the owner of the property and for an injunction restraining the defendants from disturbing his possession. It was not disputed in the pleadings that as stated by the plaintiff in his plaint defendant 4, the vendor, continued to be in possession of the suit property as the tenant of the plaintiff and the plaintiff had presented an application for eviction under the provisions of the Mysore Rent Control Act on the ground that defendant 4 had become a defaulter in the payment of rent. So the undisputed fact was that the plaintiff was in possession of the property through his tenant, defendant 4, when the suit was instituted, and if he establishes title to the suit property ha could get the injunction along with the declaration sought by him. If the injunction sought is granted, it would have the effect of prohibiting disturbance of the plaintiff's possession through a disturbance of the tenant's possession.
(2.)While there was thus no controversy with respect to the question whether the plaintiff was in possession of the property as he indeed was through his tenant, there was a serious dispute with respect to the title asserted by him. The repudiation of the plaintiff's title was by defendants 1 to 3 on the strength of the execution purchase made in the execution proceedings to which I shall presently refer. Defendant 1 who had lent some money to defendant 4 brought a suit for its recovery in the Subordinate Judge's Court, Civil Station, Bangalore, in O.S. 17 of 1957 and in that suit there was an attachment before Judgment of the properties which formed the subject-matter of the present suit and which were purchased by Byrappa. That attachment was made on April 6, 1957. There was a decree in that suit, and in the execution proceedings the suit properties were brought to sale and were purchased by defendant 2, a stranger auction purchaser, on September 4, 1961. But this sale is not vet confirmed since before any such confirmation could be made, Byrappa instituted the present suit and obtained an injunction restraining defendant 1 from continuing the execution of his decree and defendant 2 from proceeding with the proceedings for confirmation of the sale and restraining further proceedings with respect to that matter,
(3.)Defendants 1 and 2 contended that since there was an attachment before judgment when Byrappa purchased the property from defendant 4, that sale is void against all claims enforceable under the attachment obtained before judgment by defendant 1. Defendant 3 was another person who had a decree against defendant 4 and that decree he obtained in O.S. 21 of 1958 in the Court of the Munsiff, Civil Station, Bangalore, and he also obtained an attachment before Judgment before defendant 4 executed the sale deed in favour of Byrappa. But it is not necessary to refer to the resistance to Byrappa's suit on the basis of that attachment before judgment since defendant 3 stated before the Court of first instance that his decree has been otherwise satisfied.

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