RAMESAN v. ABDUL MAJEED — 1987 DIGILAW 111 (KER)

Judgment :- 1. The appellant herein filed the suit against the second respondent for money due under two documents. He also filed IA No. 2673/ 78 for attachment before judgment of an item of immovable property belonging to the second respondent. A conditional order of attachment was issued and effected. The order was passed on 26-10-1978 and attachment was effected on 27-10-1978. The first respondent filed a claim in IA 2838/78. The court below allowed the claim and raised the attachment. Plain tiff challenges this order. 2. We now advert to the factual background. The disputed item of property belonged to the second respondent and his brother. According to the first respondent under Ext.A1 registered agreement dated 9-3-1978 the brothers agreed to sell the property to the first respondent for a consideration of Rs. 52.000/-. They paid advance of Rs.23,000/- and fixed a period of agreement as seven months. Subsequently, a sum of Rs.5,000/- was paid and the period of agreement was extended by two months as per endorsement dt. 1-4-1978. In due course first respondent sent Ext.A2 notice to the two brothers demanding execution of the sale deed. It appears that notice was rot served on the second respondent, but his brother sent, Ext.A3 reply. On 22-9-1978 second respondent's brother executed sale deed, Ext.A4, in favour of the first respondent in regard to the half share in the property. According to the claimant, on 26-10-1978 second respondent executed release deed of the half share in favour of the claimant under Ext.A5 document and it was registered on 27-10-1978, allegedly prior to the time when attachment was effected. It was on this ground that the first respondent put forward his claim. The appellant denied the genuineness and bonafides of all these transactions and further contended that by the time the release deed was executed attachment had been effected and therefore the release deed has to be treated as ineffective and the attachment has to stand. He rested his case on S.64 of the Code of Civil Procedure. The court below relying on R.10 of 0.38 CPC upheld the case of the first respondent. 2.A. We have been taken through the evidence in the case. Power of Attorney holder of the claimant was examined as PW1. One of the attestors to Ext.A1 was examined as PW2. Their evidence clearly establishes that Ext.A1 registered karar was duly executed on 9-3-1978. 2.A. We have been taken through the evidence in the case. Power of Attorney holder of the claimant was examined as PW1. One of the attestors to Ext.A1 was examined as PW2. Their evidence clearly establishes that Ext.A1 registered karar was duly executed on 9-3-1978. There is also no dispute that the second respondent's brother sold his half share, in pursuance of Ext.A1 karar, by means of Ext. A4 sale deed of 22-9-1978. The evidence shows that the sale price for both the shares was agreed upon as Rs.52,000/- and under Ext.A1 Rs. 25,000/- was paid. Subsequently Rs.5,000/- was paid as per endorsement. It is also in evidence, yet another amount of Rs.4,000/- was paid. The balance amount due would therefore be Rs.18,000/- and the second respondent's share would only Rs.9,000/-. We have no ground to hold that Ext.A1 or Ext.A3 were executed without bonafides or in fraud of or to defeat and delay the appellant or any other creditor. 3. Analysing the evidence we find that registered agreement to sell was executed on 9-3-1978, long before the institution of the suit on 26-10-1978. The application for attachment before judgment was filed on 26-10-1978. The order of attachment was issued on 26-10-1978 and the attachment was effected on 27-10-1978. The evidence would show that the attachment was effected between 9.30 A.M. and 10 A.M. on 27-10-1978. The evidence would show that though Ext.A5 release deed bears the date 26-10-1978 it was executed only on 27-10-1978 after 1 P.M. and it was registered only at 2.10 P.M. In other words execution of Ext. A3 sale deed was after the attachment was effected. 4. Learned counsel for the appellant contended that since Ext.A5 release deed was executed after the attachment was effected, by virtue of S.64 CPC attachment stands and the document is void and therefore attachment could not have been raised by the court below. It is also contended that though Ext.A1 agreement was executed prior to attachment, it will not help the second respondent to contend that the sale deed should stand. 5. S.64 of the CPC states that 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 moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. 5. S.64 of the CPC states that 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 moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. In other words effect of this provision is that any private transfer or delivery brought about after making of an attachment shall not stand in the way of enforcement of claims under the attachment. S.60 enumerates kinds of property which are liable to attachment and sale in execution of decree. Land or other saleable property, movable or immovable, belonging to the judgment-debtor or over which or the profits of which he has a disposing power which he may exercise for his own benefit whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf is liable to attachment and sale. When land is attached, actually it is the interest of the judgment-debtor in the property which is attached. In other words, attachment takes effect only in regard to the right which judgment-debtor has in the property at the time of attachment. If anyone has obtained any interest or right in the property prior to the attachment, that will not be effected by the later attachment. 6. R.10 of 0.38 CPC states that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under the attachment in execution of such decree. 7. Under Ext.A1 second respondent had agreed to execute sale deed in regard to the property in favour of the first respondent. Part of the consideration was paid on the date of Ext.A1 and balance consideration was paid subsequently. The recitals in Ext.A1 would show that first respondent had been put in possession of the properly by the second respondent an the basis of the agreement of sale. Part of the consideration was paid on the date of Ext.A1 and balance consideration was paid subsequently. The recitals in Ext.A1 would show that first respondent had been put in possession of the properly by the second respondent an the basis of the agreement of sale. A person holding possession of the property in pursuance of an agreement to sell cannot have any interest in the property as conceived in the provisions of the Transfer of Property Act, but he has a right to insist on execution of the sale deed in his favour on payment of balance consideration; and conversely there is an obligation in the executor of the agreement to receive balance consideration and execute the sale deed. On failure of the latter to do so, there is a right in the executee of the agreement to file a suit for specific performance and have the sale deed executed. He can also use his possession under the agreement as a shield in terms of S.53(A) of the Transfer of Property Act. All these rights and privileges vesting in an executee under agreement to sell like the first respondent were existing at the time when the attachment was effected. At the time of such attachment, even though title at such vested in the executor of the agreement, in effect and substance his right was only to receive the balance consideration amount and his duty was to receive the same and execute the sale deed. In effect what was attached was only that right and not. the corpus of the property as such. 8. Respondents 1 and 2 entered into an agreement of sale prior to attachment. Subsequent release deed was only in pursuance of the earlier agreement of sale between the parties. When the vendee executed the release deed, he acted only as he was obliged to do under the earlier agreement of sale. It was not a fully independent transaction. Such a sale is apparently contrary to the attachment within the meaning of S.64 CPC. However, as we have already indicated, on the date of the attachment, the right of the person who agreed to sell the property was only to receive the balance purchase money. The attachment would be effective only in regard to that right. Such a sale is apparently contrary to the attachment within the meaning of S.64 CPC. However, as we have already indicated, on the date of the attachment, the right of the person who agreed to sell the property was only to receive the balance purchase money. The attachment would be effective only in regard to that right. A person who on the strength of the earlier agreement to sell obtains sale deed subsequent to attachment even after paying the entire balance consideration, would hold title to the property only with the charge in regard to balance sale consideration. The attachment would be effective is regard to such balance consideration. The attachment in such a case would not render the subsequent sale void. The sale will stand but with the charge regarding the purchase price which remained unpaid on the date of attachment. Attachment will operate regarding such unpaid purchase price and subsequent payment of price will not operate against the attachment. Sale as such will not be void. 9. We are fortified in this view by a long line of decisions of various High Courts. One of the earliest decisions on the point was of the Division Bench of the Calcutta High Court in Madan Mohan De Sarkar & Others v. Rebati Mohan Poddar and others (1916 Calcutta 927). The other decisions are those in Papparaju Veeraraghavayya v. Killaru Kamaladevi (AIR 1935 Madras 193), Veerappa Thevar & others v. C. S. Venkitaramayyar A others (AIR 1935 Madras 872), Basappa Chambassappa Chekki and others v. Nammappa Ramappa Manuar (AIR 1939 Bombay 492), Diravyam Pillai and another v. Veeranan Ambalam and others (AIR 1939 Madras 702). Athinarayana Konar v. V. Subramania Ayyar (AIR 1942 Madras 67), Range Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal and others (AIR 1941 Bombay 198) and Kochuporichu Varghese v. Ouseph Lonan (1952 KLT 623). Perhaps the only discordant note struck was by the Division Bench of the Calcutta High Court in Taraknath Mukherjee v. Sanatkumar Mukherjee (AIR 1929 Calcutta 494). One of the learned Judges, Cuming, J. distinguished the decision in Madan Mohan De Sarkar and others v. Rebati Mohan Poddar and others (AIR 1916 Calcutta 927), and took the view that attachment must prevail over the Subsequent sale to the plaintiff and the property was liable for the decree. One of the learned Judges, Cuming, J. distinguished the decision in Madan Mohan De Sarkar and others v. Rebati Mohan Poddar and others (AIR 1916 Calcutta 927), and took the view that attachment must prevail over the Subsequent sale to the plaintiff and the property was liable for the decree. The ether learned judge of the bench did not agree with this view, but preferred to follow the view taken in A.I.R.. 1916 Calcutta 927. But both the judges affirmed the decision of the District judge to the effect that title of the purchase would be confirmed but he would be liable to pay certain sums to the defendants which would be charged on the property. 10. In these circumstances we are of the opinion that the view taken by the trial court that subsequent sale cannot be disregarded is correct. However the lower court was in error in not considering the question whether on the date of attachment any balance sale consideration was due. As we have indicated earlier, attachment would operate in regard to balance sale consideration. To that extent the order of the court below has to be modified. 11. In the result, the order passed by the court below is modified to the extent of holding that balance sale consideration of Rs.9,000/- due to the second respondent at the time of attachment would be charged on the property which has vested in the first respondent. The attachment will subsist in regard to balance sale consideration and in case the suit ends in a decree first respondent will be liable to deposit in court the balance amount and the decree-holder will be liable to proceed against the sum or claim the same. The appeal is thus disposed of but in the circumstances without costs.