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1981 DIGILAW 187 (KAR)

K. C. AYYA v. M. PARASMAL

1981-07-06

K.A.SWAMI

body1981
K. A. SWAMI, J. ( 1 ) THIS civil revision" petition is preferred against the order dated 23. 2. 81 passed by the learned Addl. City civil Judge, Bangalore, in Ex. No. 64 of 1980 (old No. Exn. 657 (75) in so far it relates to rejection of the application filed under S. 151 read with order 21 Rule 66 CPC. ( 2 ) THE petitioner-judgment has filed the aforesaid " application braying that the property sought to be brought for sale is of the value of rs. 8 lakhs and the same be shown in the sale proclamation. It is also further prayed that the said property is attached before judgment in O. S. No. 78 of 1974 and such an attachment amounts to an encumbrance, therefore, the same be shown in the sale proclamation. The application has been allowed in part by directing that the value of Rs. 8 lakhs as stated by 'the judgment debtor be shown as the value of the judgment debtor in the proclamation of sale. As far as the mentioning or the attachment before judgment of the property in question as an encumbrance in the proclamation of sale is concerned, the Court has not acceded to the request of the petitioner on the ground that it is not clearly established. ( 3 ) IT is contended on behalf of the; petitioner that there is an attachment before judgment, effected on the property in question in O. S. No. 78 of 1974 which is sought to be sold in execution and such an attachment amounts to an encumbrance; therefore, it is necessary to be shown in the proclamation of sale as per order 21 Rule 66 (2) (c) CPC. ( 4 ) HOWEVER, it is not the case of the petitioner that O. S. 78 of 1974 has been decreed. Therefore, the question that arises for consideration is as to whether an attachment before judgment can be considered to be an encumbrance. Encumbrance means, a charge or liability which creates a right or title in the property on which the encumbrance is created in favour of a, party for whose benefit the encumbrance is created. The person in whose favour it is created will be entitled to pursue the encumbered property. Encumbrance means, a charge or liability which creates a right or title in the property on which the encumbrance is created in favour of a, party for whose benefit the encumbrance is created. The person in whose favour it is created will be entitled to pursue the encumbered property. As far as the attachment before judgment is concerned it does not create any such right in the property until the suilt is decreed. An attachment before judgment only prevents the party whose property is attached from selling that property. It does not create any title in the property in favour of a party who is responsible for getting the property attached before judgment. Thus an attachment before judgment is not an encumbrance or charge on the property. That being so, it is not required to be mentioned as an encumbrance in a proclamation of sale. Therefore, it follows that the rejection of the application by the lower Court, though on a different ground in so far it relates to the prayer for mentioning the attachment before judgment in the proclamation of the intended sale, cannot be held to suffer from any infirmity. ( 5 ) FOR the reasons stated above, the civil revision petition fails and the same is dismissed. --- *** --- .