Behari Lal v. District Judge, Mathura — 1981 DIGILAW 122 (ALL)

ORDER S.D. Agarwala, J. - These are two petitions under Article 226 of the Constitution of India challenging the order passed by the District Judge, Mathura, dated 23rd April, 1980, allowing revisions Nos. 119 and 120 of 1979. Briefly the facts giving rise to the present petitions are as follows : One Behari Lal filed Suit No. 29 of 1950 against Madan Lal. This suit was decreed and Behari Lal obtained a decree against Madan Lal. In execution of the said decree Behari Lal got plots Nos. 600A area 13 acres and 604 area 4.34 acres attached on 7th April, 1976. After the attachment was effected objections were filed by opposite parties Nos. 2 to 8 on the ground that prior to the said attachment on 30th July, 1975 Madan Lal had executed a registered agreement of sale in their favour and had also delivered possession of the said plots and as such the plots in dispute were not liable for attachment and sale. The further contention of opposite parties Nos. 2 to 8 was that subsequently on 29th July, 1976 a registered sale deed was executed in favour of opposite parties Nos. 2 to 8 for a consideration Rs. 25,000/-. 2. The Civil Judge, Mathura, by judgment dated 6th April, 1979 dismissed the objections of opposite parties Nos. 2 to 8 in respect of the plots in dispute by a common judgment. Against the judgment dated 6th April, 1979 two revisions were filed, namely, civil revisions Nos. 119 and 120 of 1979 before the District Judge, Mathura. Both these revisions were allowed by the District Judge, Mathura, by order dated 23rd April, 1980. This order has been impugned, as I have already stated above, by means of the present petitions. These petitions have been filed in respect of two different plots Nos. 600A and 604. They involve common questions of fact and law and as such they are being decided by me by a common judgment. 3. I have heard learned counsel for the parties in both the petitions. Learned counsel for the petitioners has urged that the Civil Judge, Mathura, having held that opposite parties Nos. 2 to 8 had no title and were not in possession of the plots in dispute rightly rejected the objections filed by opposite parties Nos. 3. I have heard learned counsel for the parties in both the petitions. Learned counsel for the petitioners has urged that the Civil Judge, Mathura, having held that opposite parties Nos. 2 to 8 had no title and were not in possession of the plots in dispute rightly rejected the objections filed by opposite parties Nos. 2 to 8 and the order of the revisional court is manifestly erroneous as the revisional court has not upset the finding so far as the question of possession is concerned. The second submission of the learned counsel is that the principle laid down in the case of the Supreme Court reported in Rana Sheo Ambar Singh v. Allahabad Bank, AIR 1961 SC 1790 : (1961 All LJ 716), was not applicable to the facts of the case and the revisional court acted illegally and with material irregularity in the exercise of its jurisdiction in holding that the property was not attachable in the eye of law. The third submission of the learned counsel is that on the admitted facts the sale deed which has been executed in favour of opposite parties Nos. 2 to 8 is subsequent to the date of attachment and the mere fact that an agreement of sale had been executed earlier did not confer any interest on opposite parties Nos. 2 to 8 and as such the appellate Court acted illegally and with material irregularity in holding that the plots in dispute were not liable to attachment. 4. I have heard learned counsel for the parties at length. In my opinion the sub missions made by the learned counsel for the petitioners are well founded. 5. The Civil Judge in his judgment dated 6th April, 1979 has found that the petitioners-decree-holders were seeking attachment of a property which was settled with Madan Lal opposite party No. 9, who was the erstwhile Zamindar. The revisional court also, after examining the evidence on record, has found that plots Nos. 600A and 604. which are in dispute, were not mortgaged with Shiam Lal. Shiam Lal was the person who had obtained the decree which is being sought to be executed by the petitioners who are successors-in-interest of Shiam Lal. In view of these facts, therefore, it is clear that the principle laid down in the case of Rana Sheo Ambar Singh (1961 All LJ 716) (supra), would clearly not apply. Shiam Lal was the person who had obtained the decree which is being sought to be executed by the petitioners who are successors-in-interest of Shiam Lal. In view of these facts, therefore, it is clear that the principle laid down in the case of Rana Sheo Ambar Singh (1961 All LJ 716) (supra), would clearly not apply. The Supreme Court had occasion to consider the case where the plots in dispute were subject-matter of the mortgage. It was laid down that the bhumidhari rights created under Section 18 are not compensation; they are special rights conferred on the intermediary by virtue of his cultivators possession of the lands comprised therein. The mortgagee, therefore, cannot enforce his rights under the mortgage by sale of the bhumidhari rights created in favour of the mortgagor. The argument that bhumidhari rights can be followed as substituted security was also not accepted. 6. In the instant case the decree which is being sought to be executed is a money decree. The property in dispute was not the subject-matter of mortgage and as such the question of enforcing the mortgage against the property in dispute does not arise. The principle, therefore, laid down in the case of Rana Sheo Ambar Singh (1961 All LJ 716) (supra) clearly does not apply. 7. In the objections filed by opposite parties Nos. 2 to 8, these objections have been attached as Annexure I to the petition, it has been only alleged that they have an interest in the attached property by virtue of the agreement of sale which had been executed in their favour on 30th July, 1975 and further they took possession of the property on that date by virtue of the agreement of sale in their favour. The Civil Judge, Mathura, in his judgment dated 6th April, 1979 has found that opposite parties Nos. 2 to 8 were not in possession of the property and possession was not given to them by virtue of the agreement of sale dated 30th July, 1975. In the circumstances the only question that remains for consideration is whether by virtue of the agreement of sale which was executed in favour of opposite parties Nos. 2 to 8 any right could be conferred on them so as to make the attachment which took place on 7th April, 1976 to be an illegal attachment. 8. In the circumstances the only question that remains for consideration is whether by virtue of the agreement of sale which was executed in favour of opposite parties Nos. 2 to 8 any right could be conferred on them so as to make the attachment which took place on 7th April, 1976 to be an illegal attachment. 8. Section 64 of the Code of Civil Procedure provides as follows: "Where an attachment has been made, any private transfer or delivery, of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment." 9. Section 64 of the Code of Civil Procedure therefore, clearly lays down that if any private transfer is made after the attachment the said transfer would be void. The question, therefore which arises in this case is as to whether if an agreement of sale had been executed prior to the date of attachment what would be the effect of the sale deed executed after the date of attachment. Under O. 21, Rr. 58 and 59 of the Code of Civil Procedure (unamended) which is applicable to the present case the claimant or the objector has to adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of the property attached. It is only when the court finds that on the date of attachment there was some interest in the attached property or the objector possessed the property attached then only his objections were liable to be allowed. In the instant case admittedly the property was sold to the objectors on 29th June, 1976 after the date of attachment, namely 6th April, 1976. The only act which was done by the judgment-debtor prior to the date of attachment was that he executed an agreement of sale on 30th July, 1975 in favour of opposite parties Nos. 2 to 8. The question, therefore is whether an agreement of sale could confer any interest in the property in favour of the objectors. Section 54 of the Transfer of Property Act clearly, lays down that a contract of sale does not, of itself, create any interest in or charge on such property. 2 to 8. The question, therefore is whether an agreement of sale could confer any interest in the property in favour of the objectors. Section 54 of the Transfer of Property Act clearly, lays down that a contract of sale does not, of itself, create any interest in or charge on such property. Therefore, in my opinion the mere fact that an agreement of the sale was executed by the judgment-debtor in favour of the objectors did not create any interest in or charge on the property in question. 10. In Raja Ram v. Girraj Kishore, AIR 1964 AH 369: (1963 AH LJ 1104), a Division Bench of this Court after analysing the various provisions came to the conclusion that even though a sale deed was executed prior to the date of attachment but registered subsequently cannot confer any right on the person in whose favour the sale deed has been registered. The principle laid down in this case fully applies to the present case. The court below has relied on three decisions of different High Courts, namely, Yashvant Shankar Dunakhe v. Pyareji Nurji, AIR 1943 Bom 145; Athi Narayan Konar v. Subramania Ayyar, AIR 1942 Mad 67 and Ghusaram v. Parshuram. AIR 1936 Nag 163. In the above cases the transfers had been made in pursuance of a decree passed by the court. They are not cases of private transfers. In the circumstances the principles laid down in these cases do not apply to the case where a private transfer is made. 11. Mere agreement of sale does not transfer any interest in the property. There is a further finding recorded by the Civil Judge that possession had not been transferred to the objectors. In the circumstances the objectors had no right whatsoever in the property which was attached on 7th April, 1976. The objections filed by the objectors opposite parties Nos. 2 to 8 were liable to fail on that account. 12. Learned counsel for opposite parties Nos. 2 to 8 has laid particular stress on Section 8, sub-clause (2) of the U.P. Zamindari Debt Reduction Act, 1953. Section 8, sub-clause (2) of the Act lays down as follows : "(2). The objections filed by the objectors opposite parties Nos. 2 to 8 were liable to fail on that account. 12. Learned counsel for opposite parties Nos. 2 to 8 has laid particular stress on Section 8, sub-clause (2) of the U.P. Zamindari Debt Reduction Act, 1953. Section 8, sub-clause (2) of the Act lays down as follows : "(2). Notwithstanding anything in any law the reduced amount found in the case of a mortgagor or judgment-debtor as the case may be under S. 3 or 4 as respects mortgaged estates shall not be legally recoverable otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgment-debtor in respect of such estates." 13. As I have already observed above it has been found that the property in dispute was not the subject-matter of the mortgage and that was not the case of opposite parties Nos. 2 to 8. In the circumstances the provisions of Section 8, sub-clause (2) of the above Act would not apply and no assistance can be sought by opposite parties Nos. 2 to 8 from this provision. 14. In the result the petitions succeed and are allowed. The order of the revisional court dated 23rd April, 1980 is quashed and that of the Civil Judge dated 6th April, 1979 is restored. In the circumstances of the case parties are directed to bear their own costs in both these petitions.