Bombay High Court
Karbhari Rangnath Joshi vs Nana Krishna Kulkarni on 21 April, 2016
Bench: T.V. Nalawade
1 S.A. 120.1995 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 120 OF 1995
Karbhari Rangnath Joshi
Age : Major, Occ. Agri.,
R/o : Belapur Khurd,
Tq. Shrirampur, District : ..... APPELLANT/
Ahmednagar. [ORI. THIRD PERSON]
V E R S U S
1. Nana Krishna Kulkarni
[since deceased Thr. L.Rs. : ]
1-A Shripad Nana Kulkarni
Age : 40 Yrs., Occ. Service,
R/o : H.J.Colony, B-99,
Pimpri, Pune - 18.
2. Eknath Keshav Kulkarni
[since deceased Thr. L.Rs. : ]
2-A. Mohan Eknath Kulkarni
Age : 55 Yrs., Occ. Driver,
R/o : Wahegaon, Tq. Gangapur,
District : Aurangabad.
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2 S.A. 120.1995 - [J]
2-B. Balkrishna Eknath Kulkarni
[Abate vide Order dt. 15/12/2010]
2-C Vasant Eknath Kulkarni
Age : 45 Yrs., Occ. Service,
R/o : Belapur Khurd,
Tq. Shrirampur, District :
Ahmednagar.
2-D Saw. Baby Baburao Waghmare
igAge : 39 Yrs., Occ. Household,
R/o : Belapur Khurd,
Tq. Shrirampur, District :
Ahmednagar.
3. Chandrabhan Waman Barhate
Age : 40 Yrs., Occ. Agri.,
R/o : Belapur Khurd,
Tq. Shrirampur, District :
Ahmednagar.
4. Sopan Waman Barhate
Age : 38 Yrs., Occ. Agri.,
R/o : Belapur Khurd,
Tq. Shrirampur, District :
Ahmednagar.
[dismissed vide Order
dated 15/12/2010].
5. Shamala Padmakar Joshi
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3 S.A. 120.1995 - [J]
Age : 35 Yrs., Occ. Household,
C/o Nana Krishna Kulkarni
at Belapur Budruk,
Tq. Shrirampur, District : ... RESPONDENTS/
Ahmednagar. [ORI. DEFENDANTS]
.....
Mr. S.P.Brahme, Advocate for Appellant.
Mr. C.V.Korhalkar, Advocate for R.Nos. 1 (a) & 5.
ig .....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 21/04/2016
JUDGMENT :
1. The Appeal is filed against the Order made
in R.D. No. 119/1970 which was pending in the Court of
the Civil Judge [Jr.Division], Shrirampur, district
Ahmednagar. It is also against the Judgment and Decree
of R.C.A. No. 69/1989 which was pending in the District
Court, Ahmednagar. Appellant is third party to the
proceeding and he had filed application for vacating the
order of attachment of one property made in R.D. No.
119/1970. This application is rejected by the Courts
below. Both sides are heard.
4 S.A. 120.1995 - [J]
2. When the appeal was admitted by this
Court, this Court had expressed that substantial questions
of law can be formulated on ground Nos. (ii), (iii) and
(iv) of appeal memo. They are as follows.
[i] Whether it can be presumed that no notice
was given to the Judgment Debtor under the
provisions of Order XXI Rule 5 of the Code of
ig Civil Procedure and due to the absence of
notice, attachment order made by the Court
can not be recognized in law ?
[ii] Whether it can be presumed that copy of
attachment warrant was not sent to the
Collector as per the requirement of Section
54 of the Code of Civil Procedure and due to
that, appellant - third party, gets ground that
he had no notice of attachment and he is
bonafide purchaser ?
[iii] Whether in view of the provisions with
regard to the consequences of attachment
made by the Civil Court and subsequent
auction sale made by the Civil Court of the
attached property, defence is open to the
third party that he is bonafide purchaser ?
3. Respondent Nana Kulkarni had filed R.C.S.
No. 76/1956 against one Pujari for recovery of amount
5 S.A. 120.1995 - [J]
of ` 1,500/- for damages for keeping his land in illegal
possession and also for relief of possession. This Suit was
partly decreed in favour of Nana and in addition to the
relief of possession, the decree of recovery of ` 600/- as
damages was given. The decree of future mesne profit
was also given.
4. R.D. No. 119/1970 was filed for recovery of
mesne profit and R.D. No. 34/1972 was filed by Nana for
the recovery of amount of damages and interest accrued
on it amounting to ` 1,500/-. In both the execution
proceedings, G.No. 431 to the extent of 1 H. 20 R.
portion of north side was attached for the security of the
aforesaid amount. In R.D. No. 34/1972, even after the
auction sale order made by the executing Court,
compromise took place and the Judgment Debtor gave
possession of his property G.No. 431 to the Decree Holder
Nana in lieu of the interest which was accruing of
` 1,500/-. He had agreed to return the amount of
` 1,500/- within 5 years from the date of possession and
after giving that amount, Nana was to return back the
possession of the disputed property to its owner, Pujari.
5. In the year 1980, present applicant and
Judgment Debtor entered into an agreement of sale of
6 S.A. 120.1995 - [J]
this land. It is the case of the appellant/applicant that he
gave money as a part of consideration to the Judgment
Debtor for getting back the possession of the aforesaid
property. It appears that the Judgment Debtor offered to
pay ` 1,500/- to the Decree Holder, but the Decree
Holder did not accept the amount and avoided to hand
over the possession. The litigation was then started for
giving possession of the disputed property by the owner
and ultimately after the decision of R.C.S. No. 236/1985,
Judgment Debtor got possession of the disputed property
on 12/12/1986. As the agreement was already executed
by the Judgment Debtor in favour of the present
appellant, he executed the sale deed of this land in favour
of the present appellant on 18/03/1987.
6. It is the case of the appellant that he had no
knowledge of attachment of this property in R.D. No.
119/1970. It is contended that due to absence of notice,
he purchased property and he had verified the necessary
record before getting the sale deed executed.
7. The application at Exh. 139 in R.D. No.
119/1973 came to be filed on 03/01/1989. Prior to that
7 S.A. 120.1995 - [J]
date, the order of auction sale was already made in
respect of the property. The Decree Holder filed reply to
this application and he contended that the attachment
order which was already made in the year 1974 was
confirmed by the superior Court and so the transaction of
Judgment Debtor and present appellant - third party is
void.
ig The executing Court has rejected the
application by holding that there was order of attachment
when the third party agreed to purchase the property and
also purchased the property from Judgment Debtor. The
executing Court has held that the transaction itself is
void. The trial Court refused to withdraw the order of
attachment made in the year 1974. The first appellate
Court has confirmed this decision.
9. The record shows that third party - appellant
is admitting that it was within his knowledge that the
property was attached in the litigation which was going-
on between his vendor and the Decree Holder. He also
admits that he had knowledge that there was compromise
between Judgment Debtor and his vendor and the Decree
8 S.A. 120.1995 - [J]
Holder and due to that compromise, the possession of the
disputed property was already given to the Decree
Holder. Thus, he admits that he had knowledge about
the order of attachment made at least in one executing
proceeding. Due to this circumstance and as he ought to
have ascertain the nature of decree given against the
Judgment Debtor, it can not be believed that he had no
knowledge that another judicial proceeding was pending
for recovery of mesne profit and interest on it. Other
proceeding was pending for recovery of ` 9,900/- and this
proceeding was filed on 14/07/1970, before filing of the
execution proceeding of which there was knowledge to
the present appellant. The amount had gone up to `
12,887/- in R.D. No. 119/1970. In view of these
circumstances, it is not possible to believe that the third
party - appellant had no knowledge about the existence
of other execution proceeding and order of attachment
made in that proceeding. Said order was made even in
the Suit.
10. The only objection taken to the attachment
by the present appellant is that the order of attachment
was not sent to the Collector as required by law. The
9 S.A. 120.1995 - [J]
aforesaid discussion shows that there was attachment of
this property right from beginning and in the present
execution proceeding the attachment order made in the
past was continued in the year 1974 and then order was
made as follows :
" Land G.No. 431 be attached.
Issue attachment order under Order
XXI Rule 54 of the Code of Civil
ig Procedure in respect of that land.
Decree Holder to file proceeding for
auction sale and it is to be made by
issuing public notice and also notice
to the Judgment Debtor. "
11. The amount recoverable is already
mentioned and so it can not be said that there was no
attachment order in existence in respect of the suit
property. The record does not show that Judgment
Debtor is coming forward to say that he had not received
the order of attachment. On the other hand, the record
shows that he had published notice in news-paper to
prevent Decree Holder from disposing of the property.
When the order of attachment was made as above, it
needs to be presumed that as per Section 114 of the
Evidence Act, necessary procedure was followed. It is
10 S.A. 120.1995 - [J]
already observed that the appellant had knowledge about
the attachment order made in both the proceedings.
Thus, in view of the provisions already quoted, the
transaction itself is void. Further, when the attachment
order was made, present appellant was not in picture and
so he has no locus standi to challenge the said order of
attachment. No error of law can be found in the orders
made by the Courts below, though different reasons are
given.
12. In the result, all the aforesaid points are
answered against the appellant and the Second Appeal
stands dismissed.
[T.V.NALAWADE, J.]
KNP/S.A. 120.1995 - [J]
