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Judgment
Subhash B. Adi, J.—This appeal is by the defendant No. 1 against the judgment and decree in R.A.No. 45/1999 on the file of Civil Judge (Sr.Dn.). Arsikere, confirming the judgment and decree in C.S.No. 268/1994 on the file of Prl. Civil Judge (Jr.Dn.). Arsikere.
Respondent No. 1 is the plaintiff. Suit is one for bare injunction restraining the defendant from bringing the suit schedule property for auction in execution of decree in O.S.No. 113/1990 in Execution Case No. 166/1992.
Case of the plaintiff is that she entered into an agreement of sale with defendant No. 2 and the father of defendant Nos. 4 and 5 viz., Eshwarappa on 7.1.1988. Under the agreement she had paid Rs. 10,000/- as advance amount. Subsequently on 31.8.1991. the said Eshwarappa executed the registered sale deed and since then she has been in peaceful possession and enjoyment of the suit schedule property. However, defendant No. 1 is seeking to execute the decree by selling the suit schedule property and sought for injunction as prayed for.
Defendant No. 1 contested the suit interalia alleging that he had filed a suit in O.S.No. 113/1990 against defendant Nos. 2 and 3 and father of defendant Nos. 4 and 5 for recovery of certain sum and the said suit has been decreed and in the execution proceedings the suit schedule property was sought to be sold for recovery of the said amount. The plaintiff has no right to prevent defendant No. 1 from executing the said decree and also denied the alleged agreement of sale.
The trial court on appreciation of the evidence decreed the suit as against which the defendant No. 1 alone filed an appeal before the lower appellate court. The lower appellate court by the impugned judgment confirmed the judgment and decree of the trial court, as against which this appeal has been filed.
This Court admitted this appeal by order dated 30th July 2004 on the following substantial question of law:
Whether the courts below are right in granting decree in respect of the suit schedule property despite the attachment order in O.S. 113/90 which was subsequently decreed on 18.12.1991 and the same is in conformity with Order 38 Rules 11 and 11A of CPC?
Sri. S.V. Bhat, learned Counsel appearing for the appellant submitted that, Section 41 clauses (b) and (d) of the Specific Relief Act bars granting of any injunction, restraining the institution or continuing the legal proceedings. No injunction should have been granted restraining the first defendant from executing the decree. Such an injunction is not contemplated under the provisions of the Specific Relief Act. In the alternative, he also submitted that, the property was attached and once the property is attached even if the sale takes place, such sale in the eye of law becomes void and as such, the plaintiff is not entitled for injunction to restrain defendant No. 1 from executing the said decree.
Sri. Gangadharappa learned Counsel for the plaintiff submitted that the suit is not for restraining the defendant No. 1 from executing his decree bur restraining the defendant only from selling the suit schedule property of the plaintiff in execution proceedings. He submitted that there is no legal bar in filing a suit. Section 9 of CPC confers jurisdiction of all the civil courts to bring any nature of suits unless expressly or by implication is barred and there is no bar either by implication or by express provision. In such circumstances, the suit is not barred either u/s 41 of the Specific Relief Act or in any other law. He submitted that both the courts have concurrently found that the suit schedule property was not the subject matter of the suit in O.S.No. 113/1990 and there is no attachment of the suit schedule property and as such, in a suit for recovery of money, if the property is not attached, it cannot be brought to sale and submitted that to protect the suit schedule property the suit for injunction has been filed. Both the courts have concurrently found that the decree cannot be executed to sell the suit schedule property and submitted that no substantial question of law arises for consideration.
The substantial question of law framed by this Court relates to an order of attachment passed in O.S.No. 113/1990 i.e.. before judgment. However, the findings of both the courts below show that the order of attachment was only in respect of suit schedule property in O.S.No. 113/1990. The suit schedule property in O.s.No. 113/1990 were only Sy.No. 32 measuring 25 guntas and Sy.No. 30/1 measuring 25 guntas whereas the suit schedule property in this case is Sy.No. 24 measuring 14 guntas. it was not the subject matter of the suit. The attachment order though not produced in the suit, but it has been kept in the record which was perused by the courts below. It reveals that the order of attachment is not in respect of suit schedule property. If that is so, there was no attachment order insofar as this property is concerned.
No doubt in case of attachment of any property with a third party in execution of decree, third party having an interest can seek for raising of attachment by filing an application under Order XXI Rule 58 of CPC. He can also protect his interest under Order XXI Rule 97 CPC. however, that does not mean that the respondent cannot restrain the defendant from executing the decree for sale of property of the plaintiff without there being any decree against him. It is in these circumstances, both the courts have concurrently found that the defendant No. 1 cannot proceed to execute the decree insofar as plaintiffs property is concerned, that too on the finding that the said property was not attached. Section 41 of the Specific Relief Act is not a bar for filing suit.
This Court has framed the substantial question of law only on the basis that there is an attachment order of the suit schedule property. Having found that there is no attachment order of the suit schedule property, the substantial question of law does not arise for consideration in this appeal.
Accordingly, the appeal fails and same is dismissed. However, the dismissal of appeal will not prevent the defendant No. 1 from executing a decree in respect of any other mode or against any other properties of the judgment debtors therein.