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Kerala High Court · body

1987 DIGILAW 119 (KER)

MOHAMMEDUNNY AZEEZ v. GOPAL CO.

1987-03-06

SANKARAN NAIR, U.L.BHAT

body1987
Judgment :- 1. Respondents herein obtained a money decree against the judgment-debtor by name K. Abdulla. Pending suit there was an attachment before judgment of the immovable property belonging to the original judgment-debtor. The attachment before judgment was effected on 25-3-1983. Decree-holder filed EA 289/86 for appointment of receiver for the building situated in the attached properties and to collect the income particularly from the tenants in possession. The application was objected by judgment-debtors 2 and 5. Overruling the objections the court ordered appointment of receiver. At that stage, on behalf of the appellants their power-of-attorney holder filed EA No 454/86 praying that the order of appointment of receiver may be set aside. They contended that as per registered document No. 1296/84 legal representatives of the original judgment-debtor had sold the entire property to them for a consideration of Rs. 6 lakhs. The court below dismissed the application. Hence this appeal. 2. The amount claimed in the execution petition is Rs.17,695-31. Though the immovable property belonging to the judgment-debtor had already been attached before judgment, decree-holder successfully sought appointment of receiver for the building which fetches considerable amount of rent. This was done overruling the objections of two of the legal representatives of the deceased judgment-debtor. It appears that the attachment was not noticed in Ext.A4 encumbrance certificate. PW1 claims to be the power-of¬attorney holder of the appellants who filed claim petition and sought the order appointing receiver to be vacated. That was on the strength of sale deed No. 1296/84 allegedly executed in their favour by the legal representatives of the judgment-debtor. Ext.A1 is only a photostat copy of the sale deed. It is not a certified copy. PW1 has no personal knowledge about the document in as much as he is not a witness. It is significant to note that the claimants are none other than the sons-in-law of the deceased judgment-debtor. According to PW1, total monthly rent of the building is Rs.4,150/-. Ext.B1 is the attachment order and Ext.B2 is a Copy of the attachment schedule and Ext.B3 is a copy of the order. These documents show that there was attachment before judgment on 23-3-1983. There is no doubt that the sale deed in favour of the appellants came into existence long after the attachment before judgment was effected, thereby attracting the provisions of S.64 of the CPC. 3. These documents show that there was attachment before judgment on 23-3-1983. There is no doubt that the sale deed in favour of the appellants came into existence long after the attachment before judgment was effected, thereby attracting the provisions of S.64 of the CPC. 3. S.64 of the Code reads thus: "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." 4. The purport of this section in so far as it relates to this case is that where there is an attachment, private sale shall be void as against all claims enforceable under the attachment. Learned counsel for the appellants would contend that S.51 of the Code lays down four methods of execution of the decree, by delivery of any property, by attachment and sale or by sale without attachment of any property, by arrest and detention in prison and by appointing receiver; it also contemplates execution in such ether manner as the nature of the relief granted may require. It is argued that appointment of receiver is, though one of the methods of execution of decree does not arise within the procedure of attachment and sale of the property. Counsel for the appellants would have it that by virtue of S.64, decree-holder will be enabled only to bring the property to sale in pursuance of the attachment and cannot seek appointment of receiver. 5. This is a case where long after the attachment before judgment was effected, legal representatives of the judgment-debtor sold the property to the sons-in-law of the judgment-debtor for a consideration of Rs. 6 lakhs and without reserving the decree amount as a debt. Hence by virtue of S.64 sale shall be void as against all claims enforceable under the attachment. The controversy in this case has to be resolved on an interpretation of the word 'claim' enforceable under the attachment. 'Claim' means 'demand for something supposed due, to demand as a right'. Claim of the decree-holder is for payment of decree amount. That is the claim under attachment also. The claim is for payment of the amount decreed. That claim attaches to the attachment by virtue of S.64 and a private sale cannot nullify the claim. 'Claim' means 'demand for something supposed due, to demand as a right'. Claim of the decree-holder is for payment of decree amount. That is the claim under attachment also. The claim is for payment of the amount decreed. That claim attaches to the attachment by virtue of S.64 and a private sale cannot nullify the claim. There is nothing in S.64 of the Code to indicate that the words 'claim under attachment' indicate the right to bring the property to sale. The words only indicate the right to decree amount. If that be so, the court cannot restrict the decree-holder's remedy. The property can be proceeded against by ether methods known through law; one of such methods is by appointment of receiver. We are therefore of the opinion that the order of appointment of receiver is valid and cannot be set aside. The appellants cannot therefore succeed in the appeal. The appeal is dismissed.