(INUGANTI) VENKATA MADHAVA RAO Vs. GARAPATI NARAYANAMURTY

JUDGEMENT

(1.) One Sobhanadri Rao obtained a mortgage decree for sale against Ramayya (respondent 3 here), brought the mortgaged property to sale and became auction- purchaser. After the auction but before confirmation of the sale respondents 1 and 2 here brought a suit for money, O.S. 89 of 1928, against Ramayya in the District Munsif's Court and obtained an attachment before judgment of the same property in this suit on 5 February 1928. On 6 February 1928 Ramayya sold the property to Madhava Rao (appellant here) and on 13 February 1928, having paid into Court what v as necessary under Order 21, Rule 89, Civil P. C, got the auction sale to Sobhanadri Rao cancelled. Madhava Rao then applied to the District Munsif for the raising of the attachment obtained by respondents 1 and 2, who by that time had got a decree in their suit but bad not applied for execution. The District Munsif held that their attachment was invalid and formally raised it. They then appealed to the Subordinate Judge, who remanded the petition to the District Munsif. Madhava Rao now appeals against that order of remand.

(2.) It is contended for Madhava Rao that no appeal lay to the Subordinate Judge against the District Munsif's order. Assuming, without deciding, that to be so, this appears to us to be a matter in which we ought to interfere in revision by petting the District Munsif's order aside on the principle of Sree Krishna. Doss v. Chandook Chand [1909] 82 Mad. 334 in order to prevent multiplicity of proceedings. If after the auction sale to Sobhanadri Rao and before its cancellation Ramayya had any saleable interest in the property, then the attachment obtainedby respondents 1 and 2, if properly made, was valid, and Ramayya's subsequent sale to Madhava Rao could have no effect against it. It is contended for Madhava Rao that Ramayya had no interest in the property at the date of his sale or at the date of the attachment, but that by virtue of Section 43, T. P. Act, after cancellation of the auction sale, Ramayya's title having revived, Madhava Rao gets the full benefit of that. But the contention that Ramayya had no interest whatever in the property after the auction sale until its cancellation appears to us unsound. Oldfield, J., in Narasingerji Gyanagerji V/s. P. Parthasaradhi, A. I.R. 1921 Mad. 498 and Sundaram V/s. Mavsa Mavuthar A.I.R. 1921 Mad. 157 went so far as to regard the judgment-debtor as preserving his full ownership in such circumstances until the confirmation of the auction sale. In the latter case Kumaraswami Sastri, J., appears to have regarded the judgment debtor as retaining an interest which could be conveyed. However Rules 86 and 87, Order 21, Civil P.C., appear to indicate the meaning of the Code in this matter. If the auction-purchaser makes default in paying full purchase money, the property has to be sold again at his risk without re-attachments In those circumstances it is the judgment-debtor's interest which is sold, and that must be subsisting after the auction, and still subject to the attachment in cases in which attachment before sale is necessary, though under Section 65 Civil P.C., if the auction sale is confirmed, the auction-purchaser's title relates retrospectively to the date of the auction. In Venkataswami Naidu v. Guruswami Ayyar [1920] 55 I.C. 626, it was remarked that after the auction sale the judgment-debtor retained no interest which could he attached or sold, but we have ascertained from the records of that case that the sale had been confirmed.

(3.) As in this case it is clear in our opinion that Madhava Rao's purchase from Ramayya on 6 February 1928 gives him no ground for objecting to the attachment obtained by respondents 1 and 2 on 5 February 1928, if the attachment was properly effected, we set the District Munsif's order in C. M. P. 961 of 1928 on his file aside and direct him to hear the petition on the remaining questions raised in accordance with the order of the learned Subordinate Judge. We may remark that we are now adopting a course similar to that taken by Sadasiva Ayyar, J., in Chengalroya Chetti V/s. Raghava Ramanuja Doss [1919] 52 I.C. 569.