S. Maharajan, J. - (1.) This appeal is directed against the judgment of Ramaprasada Rao, J. in Civil Miscellaneous Appeal No. 298 of 1962 and arises under the following circumstances.
(2.) In Original Suit No. 25 of 1957 on the file of the Rajahmundry District Court, one Appa Rao, the first Respondent herein obtained a decree against his own grandfather, one Raja Rao Venkata Kumara Mahipathi, who died during the pendency of these proceedings, and whose legal representatives are Respondents 2 to 11. The first Respondent being the grandson of the judgment -debtor has also been recorded as one of the legal representatives. In E.P.R. No. 4 of 1961, the decree -holder filed a petition to execute his decree after getting it transmitted from the Rajahmundry Court to the Sub -Court at Ootacamund and had the disputed property attached on 11th January 1961. On 6th February 1961, one Raju Bettan, the Appellant herein and one Raju Gounder preferred a claim petition in Execution Application No. 92 of 1961 under Order XXI, Rule 58, Code of Civil Procedure. The foundation of their claim was that under exhibit A -1, a deed, dated 4th January 1961, the judgment -debtor had agreed to sell the disputed property in their favour for Rs. 99,000, that on 4th January 1961 they paid him Rs. 25,000 being a portion of the sale price and were put in possession of the disputed property on 4th January 1961 itself and that they paid the balance and secured a registered sale deed, exhibit A -2 on 16th January 1961, they were in possession of the property in their own right, and not on behalf of the judgment -debtor. This claim was opposed by the decree -holder. By order, dated 13th July, 1961 the learned Subordinate Judge, Ootacamund dismissed the claim petition, after holding that at the time of attachment it was the judgment -debtor who was in possession of the property attached, and not the claimants, and that exhibits A -1 and A -2 were the result of collusion between the judgment -debtor and the claimants. Subsequently the claimants filed Execution Application No. 531 of 1961 under Order XLVII, Rule 1, Code of Civil Procedure for review of the order dated 13th July, 1961 whereby Execution Application No. 92 of 1961 was dismissed. Notice of this application was ordered to the decree -holder, who appeared by Counsel and advanced arguments in support of the earlier order, a review of which was applied for. The learned Subordinate Judge allowed the review petition with costs, reversed the order of dismissal of the claim petition, allowed the claim and directed the attachment in Execution Petition No. 4 of 1961 to be raised. In his order of review the learned Subordinate Judge has elaborately considered the case of the claimants for review and, after demonstrating that his original order was guilty of certain errors, reviewed the same. In the original order the learned Subordinate Judge held that exhibit A -1, the agreement of sale, must have been brought into existence fraudulently and in collusion between the judgment -debtor and the claimants but in the order allowing the review petition he felt constrained to change this view for the following reasons:
(3.) In the first place, he omitted to consider the affidavits which had been filed during the claim proceedings, one by Mr. Devaraj Urs, an Advocate of Coonoor, who had attested exhibit A -1 and A -2, and who swore that he was present at the time exhibit A -1 was concluded and attested it and that he was also present when in part performance of the agreement of sale the claimants were put in possession of the property in dispute. A similar affidavit had been filed by T.K. Govindaraj, who was the monigar of Coonoor village. The learned Judge says that though these affidavits had been filed even in the claim proceedings, the claimants' Advocate had by inadvertence failed to mark them with the result they had escaped judicial attention. Had these affidavits been brought to his notice, says the learned Judge, he would certainly have come to the conclusion that the agreement and the sale were genuine transactions and that in pursuance of the agreement the claimants had actually been inducted into possession of the property even prior to the date of attachment. Another mistake, which, according to the learned Judge, he had committed, while dismissing the claim petition, was that he was under the impression that only a sum of Rs. 25,000 had actually been parted with by the claimants under the agreement and the sale deed, but at the time of review it was brought to his notice that the claimants had, under the terms of exhibits A -1 and A -2, expressly undertaken to discharge two mortgages of the judgment -debtor aggregating to Rs. 73,720 and that out of the sale consideration of Rs. 99,900 the said amount of Rs. 73,720 was reserved with the claimants for redemption of the mortgages. This discovery, says the learned Judge, put a different complexion upon his appreciation of exhibits A -1 and A -2.;