This Civil Revision Petition is filed by the plaintiffs against the order dated 22.2.2007 passed in IA.No.210/2000 in OS.No.12/2005 by the learned Subordinate Judge, Uthamapalayam.
2. The petitioners have filed the above said suit against the respondents 2 and 3 for recovery of a sum of Rs.1,70,000/- with subsequent interest. Pending the suit, they have filed an application in IA.No.51/2005 for attachment before judgement of the properties belonging to the respondents 2 and 3. After contest by order dated 16.9.2005, three items of the properties mentioned in IA.No.51/2005 were ordered to be attached and on 27.9.2005 and those properties were attached. In the mean while, the 1st respondent, who is a third party to the suit has filed IA.No.210/2005 to raise the attachment of item (2) of the petition mentioned property on the ground that he is the bona fide purchaser for value. The court below though held that the 1st respondent is not a bona fide purchaser, but allowed the application on the ground that the other items of the properties are sufficient to realise the claim and aggrieved over the same, this Civil Revision Petition has been filed by the plaintiffs.
3. Mr.R.Subramanian, the learned counsel for the petitioners would contend that the court below having found that the 1st respondent is not a bona fide purchaser ought to have dismissed the petition filed by him to raise the attachment, as the respondents 2 and 3 have sold the property in order to defraud the petitioners.
4. Per contra, Mr.Prabaharan, the learned counsel for the 1st respondent would submit that the 1st respondent is the bona fide purchaser for value, having purchased the property by a registered sale deed dated 8.8.2005, after verifying the encumbrance of the property till the period prior to sale and pursuant to the sale, he was put in possession and after he had come to know that the order of attachment was made by the court below, immediately he had filed the petition for raising of the attachment. He would contend that on the date of his purchase, admittedly there was no order of attachment and hence, his rights should be protected.
5. In the instant case, IA.No.51/2005 for attachment before judgement had been filed on 16.3.2005 and after hearing both the parties, it has been posted to 9.8.2005 directing the judgement debtors to furnish security and as the respondents 2 and 3 failed to furnish security, an order of attachment has been made on 16.9.2005. But, the 1st respondent has effected sale on 8.8.2005 just one day prior to the date on which the respondents 2 and 3 were directed to furnish security for the suit claim. It is no doubt true that the respondents 2 and 3 have sold the property despite the statement made by them before the court below that they had no intention to sell the property.
6. But, to render a subsequent alienation invalid, an attachment before judgement, just like an attachment in execution must be made in the manner prescribed by the Code of Civil Procedure. It is only then that the attachment would operate as a valid prohibition against alienation. By virtue of Order 38 Rule 7 of CPC, an attachment of property before judgement has to be effected in the same manner as an attachment of property in execution and the law requires that a prohibitory order must be made and published in the manner prescribed by Order 21 Rule 54 of CPC. Admittedly, in this case an order of attachment had been made only on 16.9.2005 and the property is said to have been actually attached on 27.9.2005.
7. The object of Section 64 of CPC is to prevent fraud on the decree holder and to secure in fact the rights of the attaching creditor against the attached property by prohibiting private alienation pending attachment. The words "where attachment has been made" in Section 64 of the Code show that the section has no application to transfers made before attachment is levied. It follows that where a transfer is made after an order of attachment, but before it was actually effected even then the Section will not apply. This view is countenanced in the decision rendered in the case of Anu Radha Gandhi Vs. Ramanup Singh [AIR-1950-Patna-156], wherein the Division Bench of Patna High Court has held that an attachment before judgement cannot prevail over a sale deed executed in spite of attached property before the order of attachment is made even though the sale deed is registered after the attachment.
8. The same view is reiterated in the case of Hamda Ammal Vs. Avadiappa Pather [1991-1-SCC-71], wherein the Honourable Supreme Court has held on facts of the said case that where the purchaser purchased the property before attachment, but the sale deed got registered after attachment, even then that the purchaser's right has got to be protected under Rule 10 of Order 38 of CPC read with
Section 47 of the Registration Act and that would relate back to the date of the execution of the sale deed.
9. Therefore, the position of law is clear that where an attachment of property has been made it has merely the effect of preventing all private alienations of the property, but it confers on the decree holder no title, charge, lean or right in the property. Further, an order of attachment takes effect only from the date of its actual promulgation under Order 21 Rule 54 of CPC.
10. In the instant case, since the 1st respondent has purchased item (2) of the property even before the attachment was made, the sale cannot be held to be void under Section 64 of CPC. That apart, except item (2) of the property, which has been purchased by the 1st respondent, the other two items are very much available and the order of attachment being in force as against those properties, the court below has rightly held that they are sufficient to satisfy the claim of the petitioners. In such view of the matter, the impugned order passed by the court below in raising attachment as against item (2) of the property is sustainable and I do not find any illegality or infirmity to interfere with the same.
11. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MPs are closed.
Srcm To:
The Subordinate Judge, Uthamapalayam