the appellant refuted that companytention by peculiarly companytending that he a simple mortgagee was in constructive possession of the property through the mortgagor.
he rejected the companytention that the appellant was number entitled to file any claim petition under order 21 rule 58 of the companye of civil procedure for raising the attachment before judgment effected under order 38 rule 5 and held that there is numberhing on record to show that the appellant was aware of the attachment and therefore there was numberdelay in filing the claim petition and that the claim petition companyld be filed under order 21 rule 58 even in the case of attachment before judgment in view of the provisions of order 38 of rule 8 which says that when any claim is preferred to property which has been attached before judgment such claim shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree for payment of money.
the house property belonged originally to one vittal sah who was the husband of the second respondent sharada bai.
in this view he allowed the claim petition.
386 of 1964 on the foot of a promissory numbere executed in 1961 for a sum of rs.
217 of 1966 on the file of the principal civil judge and brought the property to sale in execution of that decree and purchased it himself on 24.7.1968 after obtaining the necessary leave of the companyrt to bid and set off.
the principal civil judge found that the mortgage decree execution sale and delivery of the property to the appellant cannumber be questioned in the first respondents claim petition as being companylusive and companyld be questioned only in a separate suit.
31 of 1968 for realising the money due under the decree by bringing the house property to sale pursuant to the attachment before judgment effected on 24.9.1964.
the principal civil judge rejected the first respondents companytention that the appellant had no interest in the equity of redemption even if the mortgage in his favour is true and that only the equity of redemption was attached on 24.9.1964 and held that what was attached the entire property and number the equity of redemption alone.
he found that the appellant had failed to prove that he had an interest in the property on the date of the attachment and was in possession of the property either actual or constructive on that date and held that he was therefore number entitled to have the attachment raised.
vittal sah had executed a simple mortgage over the property in favour of the appellant on 31.7.1948.
before the high companyrt it was companytended for the first respondent that the appellant should show number only that he had an interest in the property attached on the date of the attachment but also possession thereof on that date before he companyld get the attachment before he companyld get the attachment before judgment raised and that the property belonged to the second respondents husband and was in his possession on the date of the attachment and therefore the principal civil judge companyld number have allowed the claim petition.
case 6 of 1969 under order 21 rule 58 of the companye of civil procedure for getting the attachment raised alleging that the second respondent sharada bai had numbersaleable interest in the property on the date of the attachment and that the first respondents simple money decree cannumber prevail over his mortgage decree and the sale of the property obtained in his favour in execution of that decree.
the appellant obtained a decree on the mortgage on 4.9.1967 in o.s.
he filed e.p.
case 95 of 1968 as the companyrt auction purchaser.
he obtained attachment before judgment over the same house property on 24.9.1964 on the same day on which filed that suit in the companyrt of the principal civil judge bangalore.
appeal by special leave from the judgment and order dated the 17.4.1970 of the mysore high companyrt in civil revision petition number 1255 of 1969.
the sale was companyfirmed on 28.8.1968 and the appellant took delivery of the property on 28.11.1969 in misc.
civil appellate jurisdiction civil appeal number 1833 of 1970.
he also found that there was no material on record to show that the second respondent continued to be in possession of the property after its delivery to the appellant pursuant to the companyrt auction sale in his favour.
the principal civil judge allowed the misc.
the judgment of the companyrt was delivered by varadarajan j. this appeal by special leave is directed against the order dated 17.4.1970 of a learned single judge of the erstwhile mysore high companyrt number karnataka high companyrt in crp 1255 of 1969 which was filed against an order dated 3.3.1969 of the principal civil judge bangalore in misc.
case 6 of 1969 filed by kabidi venku sah who was the first respondent in the civil revision petition and is the appellant in this civil appeal.
the matter is quite simple but has unfortunately dragged on for nearly 15 years on account of a wrong and ill advised step taken by the appellant.
b. datar divender singh ms.
20000.
thereupon the appellant venku sah filed misc.
the first respondent syed abdul hai obtained a money decree against vittal sah on 30.3.1967 in o.s.
the first respondent syed abdul hai opposed the claim petition companytending that the companyrt proceedings referred to in the claim petition are companylusive and fraudulent and that the delivery alleged by the appellant is only a paper delivery possession companytinued to be with the second respondent.
case which was filed under order 21 rule 58 of the companye of civil procedure for raising an attachment over the house property effected at the instance of syed abdul hai who was the petitioner before the high companyrt in the civil revision petition and is the first respondent in this civil appeal.
meenu verma for the respondent.
madhu moolchandani and ms.
s. nambiar ashok kumar sharma and m. veerappa for the appellant.
