N. KRISHNAIH SETTY versus GOPALAKRISHNA & ORS.

Citation: [1975] 1 S.C.R. 970 · Decided: 03-09-1974 · Supreme Court of India · Bench: P. JAGANMOHAN REDDY · Disposal: Dismissed

Judgment (excerpt)

970 
N. KRISHNAIH SETTY 
v. 
GOPALAKRISHNA & ORS. 
September 3, 1974. 
[P. JAGANMOHAN REDDY, M. H. BEG AND A. ALAGIRISWAMI, JJ.] 
Mysore Agriculturists' Relief Act, 1928 s. 14--Scdpe of. 
Code of Civil Procedure (Act 5 of 1908), s. II-Applicability. 
Under s. 14(1) of the Mysore Agriculturists' Relief Act 1928, no agricultural 
land belonging to an agriculturalist shall be attached or sold in execution of any 
decree or ~rder unless it has been specifically mortgaged for the payment of the 
debt to which such decree or order relates. 
The appellant filed a suit on a promissory note executed by the father of the 
respondents. 
There was an attachment before judgment, and after decree was 
passed, the properties belonging to the family were sold in execution. The res-
pondents were born thereafter. They filed a suit contending that the sale of the 1 
properties in execution of the appellant's decree was void ab initio under the 
Act. 
The trial Court decreed the suit but the first appellate court allowed the 
app~al on the ground that as the respondents were not born on the date of the 
sale they could not challenge its validity. 
The High Court restored the judg-
ment of the trial court. 
· 
Dismissing the appeal to 
thi~ Court. 
HELO : ( l) The attachment before judgment was not valid and therefore 
the sale in pursuanGe of that attachment was void. The suit filed by the appel. 
Jant was not on the foot of a mortgage and therefore the sale in execution of the 
appellant's decree is against the provisions of s. 14(1). The contention that &. 
14(2) does no more than lay down the same procedure as 0. 38, C.P.C., and 
therefore the attachment iis valid, is not correct. Section 14{2) permits an at· 
tachment only in execution of a decree. [972 B--E] 
(2) The respondents were entitled to file the suit questioning the sale. 
A 
void sale held in execution of a decree confers no title on the auction purchaser. 
Therefore. the joint family to Ylhich the properties belonged did not lose their 
title, but continued to be owners, and the ·respondents got a right to the property 
as soon as they were born by right of birth. [972 E-G] 
(3) The suit was not barred by res judicata because : (a) to the earlier suits 
referred to the respondents were not ma:de· par1ies; and (b) those suits were filed 
in the ~1unsiff's court and were therefore not decided by a court of competent 
jurisdiction as the rrcsent suit was filed in the Subordtn<ite judge's court The 
respondents were also not representatives of their father as contemplated in s. 
11. C.P.C. [972 H-973 CJ 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1748 of 1967. 
From the Judgment and Order dated the 6th January 1961 of the 
Mysore High Court at Bangalore in Second Appe&l No. 129 of 1956. 
S. C. Ma'ik A. S. K. Rao and M. R. K. Pil.'ai for the appellant. 
K. Rajendra C!taudhury for the respondents Nos. 1-8. 
The Judgment of the Court was delivered by 
ALAGIRISWAMI, J. This is an appeal by certificate against the judg-
m~nt of the High Courl of Mysore in a second appeal. It arises out 
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N. K. SETTY v. GOPALAKRISHNA (Alagiriswami, !.) 
9H 
of a suit filed by respondents I and 2 (who will hereafter be referred to 
as plaintiffs) for a declaration that the sale held in execution of the 
decree obtained by the appellant (who was the 9th defendant in the 
suit) in 0. S. No. 31 of 1937-38 against their father and other members 
of their family was void ab initio. 0. S. No. 31 of 1.937-38 had bee11 
filed by the present appellant on the basis of a promissory note exe-
cuted as already mentioned by the father of the plaintiffs and other 
members of that family. In execution all the sixteen items of property 
belonging to the family were sold. The sale was in pursuance of all 
attachment before the judgment made on 25th September 1937. The 
suit was subsequently decreed. In the suit the only plea taken was that 
the defendants were agriculturists entitled to the benefit of the Mysore 
Agriculturists Relief Act 1928. The plaintiffs filed the suit for a mere 
declaration because they continued in possession of the properties 
which had been sold in execution and purchased by defendants 10 and 
11 in the suit and subsequently purchased by the appellant. The Trial 
Court decreed the suit. It should be mentioned that the suit was filed' 
on 14-5-1952. The plaintiffs were born respectively in the years 1944 
and 1950. On appeal the District Judge held that

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