JUDGMENT S. Rajeswaran, J. 1. Application No. 3827 of 2006 is filed to declare the sale effected on 31-7-2006 by the respondents in respect of the property No. 1 mentioned in the schedule hereunder and sale effected on 3-5-2006 and settlement on 16-6-2006 in respect of property No. 2 mentioned in the schedule hereunder as null and void for the sole reason that when the above encumbrance took place the order of Attachment before Judgment granted by this Hon'ble Court on 4-10-2005 was still in force. Application No. 3828 of 2006 is filed to direct the fourth respondent to deposit the above sale amounts from the auction to the credit of the suit and keep the same pending disposal of the above suit. Application No. 1556 of 2006 is filed to raise the order of Attachment in O.A. No. 1498 of 2005 in C.S. No. 226 of 2005 before Judgment passed by the Hon'ble Court dated 4-10-2005. The brief facts are as under: For the sake of convenience the parties are referred to as they are referred to in the suit. 2.1. The plaintiff as a private limited Company deals in foreign exchange. The plaintiff provides foreign exchange in its regular course of business by way of day-to-day dealings with the first defendant company. The plaintiff provided adequate foreign exchange assistance by way of Foreign Currencies, Traveler's Cheque, etc. The defendants became defaulter in payment on account of the foreign exchange aggregating to a sum of Rs. 41,35,850/-. When demanded, the third defendant having acknowledged the debt sought time as their business was going through a bad patch. Still no payment was made even after granting time. Finally, the defendant issued twenty cheques, but they were all returned dishonoured and criminal proceedings have been initiated by the plaintiff, which are pending before the XIV M. M. Court, Egmore, Chennai-600 008. Hence, the plaintiff company filed the above suit, directing the defendant to pay a sum of Rs. 52,93,888/- together with interest at 24% per annum. 2.2 The plaintiff company filed an Application in Appln. No. 1498 of 2005 for Attachment Before Judgment and the same was allowed by this Court on 4-10-2005. 2.3 M/s. Indian Overseas Bank, Nungambakkam Branch, filed an Application in Appln. No. 682 of 2006, to implead them in the suit and the same was also allowed by this Court on 16-2-2006. 2.2 The plaintiff company filed an Application in Appln. No. 1498 of 2005 for Attachment Before Judgment and the same was allowed by this Court on 4-10-2005. 2.3 M/s. Indian Overseas Bank, Nungambakkam Branch, filed an Application in Appln. No. 682 of 2006, to implead them in the suit and the same was also allowed by this Court on 16-2-2006. 2.4 Thereafter, the bank as fourth defendant filed an Application in Appln. No. 1566 of 2006, to raise the order of Attachment dated 4-10-2005 made in Application No. 1498 of 2005. 2.5 While so, the plaintiff company filed 25. Application Nos. 3827 and 3828 of 2006. A common affidavit has been filed in the above two applications stating that the fourth defendant bank conducted an auction of the properties already attached by this Court on 24-2-2006 and sold the property No. 1 in the schedule on 31-7-2006 to one Mr. V. P. Balaraman for a meagre sum of Rs. 7,30,000/- which is well below the market price of Rs. 15,00,000/-. Similarly, property No. 2 in the schedule was sold by the fourth defendant bank on 3-5-2006 to one Mr. J.S. Prem Kumar, who in turn settled the property to one Mrs. T. N. M. Tharani Bai on 16-6-2006. Hence, the plaintiff filed the above applications to declare that the two sales effected by the fourth defendant bank as null and void and to direct the fourth defendant bank to deposit the sale amount to the credit of the suit 2.6 A counter affidavit and an additional counter-affidavit has been filed by the fourth defendant bank in the above said two applications. 2.7 In the counter-affidavit, fourth defendant bank has stated that they lent money to the defendants 1 to 3 and the properties were mortgaged with the bank on 15-12-2003. As default was committed, the bank had invoked the provisions of Securities Act, and on 16-10-2004, notice was issued to the defendants 1 to 3. The bank has taken symbolic possession of the charged assets on 12-1-2005. But the above suit was filed by the plaintiff on 14-2-2005, without adding the bank as defendant. The bank further submitted that the attachment order does not affect their rights which existed even prion filing of the suit. 2.8 In the additional counter-affidavit, the fourth defendant bank stated that the property No. 1 in the schedule was not sold to Mr. The bank further submitted that the attachment order does not affect their rights which existed even prion filing of the suit. 2.8 In the additional counter-affidavit, the fourth defendant bank stated that the property No. 1 in the schedule was not sold to Mr. V. P. Balaraman as stated by the plaintiff. Only item No. 2 in the schedule was sold to one Mr. J.S. Premkumar on 5-4-2006. All though item No. 1 along with two other properties were also brought for auction, on the same sale date, as there was no bidder, item No. 2 alone was sold for a sum of Rs. 15, 10,000/- after fixing the upset price of Rs. 6,00,000/-. 2.9 It is specifically pointed out in the additional counter filed by the bank that the defendant 1 to 3 settled the outstanding and took back all the title deeds pertaining to the properties which were mortgaged with the bank. 3. I have heard Mr. K. Vijaya Narayanan, learned senior counsel appearing for the plaintiff and Mr. K. Rajasekaran, learned Counsel for the fourth defendant bank. 4. I have also gone through the documents and judgments referred to by them in support of their submissions. The learned senior counsel appearing for the plaintiff submitted that when the Application No. 1556 of 2006 filed by the fourth defendant bank to raise the order of Attachment is still 'pending it is not open to the fourth defendant bank to sell the property hastily and therefore the sale has to be declared as void and the amount has to be deposited into the credit of the suit. 5. Per contra, the learned Counsel for the fourth defendant bank vehemently submitted that the properties were mortgaged with the bank on 15-12-2003 and notice was issued under Securitisation Act on 16-10-2004 and symbolic possession was taken on 12-1-2005. But the plaintiff filed the suit on 14-2-2005, without adding the bank as defendant and defendants 1 to 3 allowed an Ex parte order of Attachment to be passed by this Court. Therefore, the learned Counsel submitted that the suit itself is an act of collusion by the plaintiff with defendants 1 to 3. The learned Counsel further submitted that the order of attachment does not affect the right of the bank to sell the property as bank is a prior mortgage holder and the plaintiff is an unsecured creditor. Therefore, the learned Counsel submitted that the suit itself is an act of collusion by the plaintiff with defendants 1 to 3. The learned Counsel further submitted that the order of attachment does not affect the right of the bank to sell the property as bank is a prior mortgage holder and the plaintiff is an unsecured creditor. In support of his contention the learned Counsel for the fourth defendant bank relied on the decisions of this Court reported in S.U.S. Davey Sons v. P. M. Naranaswamy : AIR1983Mad217 and decision of the Gujarat High Court reported in Syndicate Bank v. National Wire Products : AIR1994Guj2 . 6. I have heard the rival submissions with regard to the facts and citations. The facts are not in dispute. The only question that arises for consideration is whether the bank could sell the property when the order of attachment dated 4-10-2005 is still in force and the application filed by the bank in Appln. No. 1556 of 2006 to raise the order of Attachment is still pending before this Court. The decision of the Division Bench of this Court reported in : AIR1983Mad217 (cited supra) can be usefully referred to for answering this question. 7. In the above decision the Division Bench held as follows: (Para 6) When an attachment is effected the person against whom the order is made is prohibited and restrained from transferring or charging the property. The order of attachment is issued against the judgment debtor and in respect of all his interest in the immovable property. In this case, the actual order of attachment made is not produced. But is presumed that it is in the same form as contained in form 24 of appendix E to the Civil Procedure Code. That only is directed against the defendant or the judgment-debtor and the word 'defendant or judgment-debtor' would not include a mortgagee with power of sale. We are specifically referring to this because, we have already stated in the earlier part of the judgment that no notice of attachment was specifically issued to the mortgagee nor does the order of attachment as such include a mortgagee with a power of sale, under Section 69 of the Transfer of Property Act. We are specifically referring to this because, we have already stated in the earlier part of the judgment that no notice of attachment was specifically issued to the mortgagee nor does the order of attachment as such include a mortgagee with a power of sale, under Section 69 of the Transfer of Property Act. In the light of these provisions, therefore, we are of the view that the word 'private transfer' occurring in Section 64, CPC would only mean a transfer by the person against whom the attachment was made or prohibitory order was issued in respect of the immovable property or whose interest (including his legal representative) is attached but would not include a sale or transfer made by a mortgagee with a power of sale. In fact, Order 38, Rule 10, CPC also states that attachment before judgment shall not affect the rights 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 attachment in execution of such decree. 8. The Division Bench has held that when an attachment is effected the person against whom the order is made is prohibited from transferring the property and under Order 38, Rule 10 Code of Civil Procedure, the Attachment. Before Judgment shall not affect the rights 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 attachment in execution of such decree. 9. In : AIR 1994 Guj 2 (cited supra) the Gujarat High Court has held that Attachment Before Judgment under Order 38, Rule 5 shall not affect the rights existing prior to the date of attachment and the order passed under Order 38, Rule 5 for attachment of property before judgment does not confer any title, charge, lien or priority in favour of a person attaching it, The Gujarat High Court has also pointed out that Order 38. Rule 10 that an attachment before judgment does not, in any way affect the rights of the persons, in respect of the disputed property, who are not parties to the suit. 10. Rule 10 that an attachment before judgment does not, in any way affect the rights of the persons, in respect of the disputed property, who are not parties to the suit. 10. In the case on hand the suit was filed by the plaintiff only against the defendant 1 to 3 and the fourth defendant was not a party to the suit at the time when the attachment before judgment order was passed by this Court on 4-10-2003. Therefore the Attachment. Before judgment order passed by this Court does not in any way affect the right of the bank in respect of the disputed property. It is also not disputed by the plaintiff that the properties were mortgaged with the 4th respondent bank on 15-12-2003 itself. Under such circumstances the attachment before judgment order will not affect the rights of the bank which existed much prior to the date of the order of attachment. Further, an order passed under Order 38, Rule 5 does not confer any title nor any priorities in the property in favour of the plaintiff. Therefore, the prayer sought for in Appln. Nos. 3827 and 3828 of 2006 cannot be granted. At the same time the bank having come to the Court for raising the order of attachment, the fourth defendant bank should have exercised some restraint and waited till the disposal of the Appln. No. 1556 of 2006 filed by the bank to raise the order of attachment dated 4-10-2005. But, there cannot be ground to declare the sale deed as null and void and direct to deposit the sale consideration into the credit of the suit. Hence, the Appln. Nos. 3827 and 3828 of 2006 are dismissed. 11. It is now admitted by the fourth defendant bank that Item 2 in the schedule of Application No. 3827 of 2006 alone was sold by the bank and the defendants 1 to 3 settled their amount with the bank and they have taken back the title documents. Item No. 2 in the schedule of Application No. 3827 of 2006 is identical with schedule 'C of the Application No. 1556 of 2006, which was filed by the fourth defendant bank to raise the order of attachment dated 4-10-2005. 12. Item No. 2 in the schedule of Application No. 3827 of 2006 is identical with schedule 'C of the Application No. 1556 of 2006, which was filed by the fourth defendant bank to raise the order of attachment dated 4-10-2005. 12. Considering the fact that 'C schedule property in Application No. 1556 of 2006 was already sold, the attachment before judgment already granted by this Court on 4-10-2005 is to continue with regard to schedule 'A' and 'B' of the properties in Application No. 1556 of 2006. 13. With the above modification the Application No. 1556 of 2006 is disposed of. In result the Application No. 1556 of 2006 is disposed of with the above modification. The Application Nos. 3827 and 3828 of 2006 are dismissed. No costs.