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2014 DIGILAW 378 (ORI)

Sk. Yusuf v. Md. Awesh

2014-06-25

S.PANDA

body2014
Judgment S.Panda, J. Petitioner in this writ petition has challenged the order dated 15.10.2004 passed by learned Ad hoc Addl. District & Sessions Judge F.T.C. No.IV, Cuttack in F.A.O. No. 93 of 2003 confirming the order dated 29.7.2003 passed by learned Civil Judge (Sr.Divn.), 1st Court, Cuttack in CMA No. 219 of 1999. 2. The facts leading to the present writ application are as follows:- It reveals from the impugned order that opposite party filed T.S. No. 190 of 1994 for specific performance of contract and to direct the defendant No.1 to sell the land to the plaintiff after depositing Rs.1,00,000/-or in the alternative a decree may be passed for realization of Rs.45,000/-from the defendant with 12% interest per annum. The judgment and decree was passed in the suit on 18.2.1998 and on 2.3.1998 respectively. Thereafter, the opposite party filed Execution Case No. 71 of 1998. The decree was for realization of the amount of Rs.45,000/-in the execution proceeding. The property was attached on 28.1.1999. The proclamation was made on 1.2.1999 by adopting the procedure prescribed. While the matter stood thus, the present petitioner filed an application under Order, 21 Rule, 58 of the Code of Civil Procedure registered as C.M.A. No. 219 of 1999 for adjudication of his right title and interest over the property under attachment and for releasing the same from attachment to hold that the judgment debtors have got no manner of right title and interest over the suit land at the time of passing of the order of such attachment. He has specifically pleaded in the said application that he is the bonafide purchaser of suit property for value and has taken possession of the same much prior to the order of attachment by virtue of Registered Sale Deed from the defendant No.1 who has delivered possession and therefore sale has become absolute. The title of the property has already been passed in favour of the petitioner therefore the judgment debtors have no abiding interest of the same at the time of attachment. The property in question does not exclusively belong to the judgment debtor therefore the property should not have been attached for satisfaction of the decree when the judgment debtors have other properties which are sufficient to satisfy the decree under execution. The property in question does not exclusively belong to the judgment debtor therefore the property should not have been attached for satisfaction of the decree when the judgment debtors have other properties which are sufficient to satisfy the decree under execution. It is also contended by the petitioner that without complying the mandatory provision under Order, 21 Rule, 54 of the C.P.C. and in connivance with process server and other persons the decree holder managed to prepare the report falsely regarding attachment of the property. The petitioner also stated that for self and his family inhabitant petitioner was in search of a homestead land and came to know that one Noor Jahan Begum of Daragha Bazar Cuttack for her legal necessity wanted to sale the property under Plot No. 605/2677 under Stitiban Khata No. 371 situated at Kathagadasahi having a pucca building thereof. Accordingly, petitioner entered into an agreement with the said Noor Jahan Begum and the consideration money was fixed at Rs.60,000/-. On 20.6.1996 part consideration of an amount of Rs.40,000/-was paid and rest amount of Rs.20,000/-was paid on 21.7.1996. After full and final consideration amount was made the possession of the said property was delivered in his favour in the year 1996. The petitioner after making substantial expenditure in re-modelleing the house residing thereon with his family. He has also stated that the vendor Noor Jahan Begum after obtaining the ceiling permission from the competent authority on 10.3.1999 executed the Registered Sale Deed in favour of the petitioner. The opposite party-judgment debtor filed objection to that misc. case stating that the misc. case is not maintainable and he has traversed the averment of the petitioner and pleaded that the decree holder has no knowledge of purchase of the property by consideration money and as the purchase was after the attachment he is not entitled to any relief. He has also denied that the J.Dr. has put the petitioner in possession prior to attachment and proclamation of attachment was made in accordance with law. In support of their respective contention both the parties adduced evidence also. He has also denied that the J.Dr. has put the petitioner in possession prior to attachment and proclamation of attachment was made in accordance with law. In support of their respective contention both the parties adduced evidence also. The court below determined four issues for adjudication of the dispute between the parties and came to a finding that attachment was made by beat of drum by one Radhu Nayak and contents of the attachment were read over and explained to the persons present there and a copy of the same was affixed on the Sadar door of the property and also on an electric pole at the centre place of the locality. Another copy of the notice of attachment was affixed on the notice board of the court. Therefore attachment cannot be held to be a nullity. P.W.1 in his evidence stated that Noor Jahan Begum entered into an agreement with him for sale of the property and received part consideration of Rs.40,000/-on 20.6.1996. The balance consideration amount was received on 21.7.1996 and possession was delivered by giving a receipt dated 21.7.1996. The said receipt was marked as Ext.1 in C.M.A. No. 219 of 1999. He has also produced the sale deed dated 10.3.1999 which was marked as Ext.3. The decree was passed on 5.2.1998 and the notice in Execution Case No. 71 of 1998 was issued to Noor Jahan and her husband the power of attorney holder, who is supposed to know about the delivery of possession of suit property and after the death of judgment bebtor namely Noor Jahan Begum her husband is the best person to know all the facts who has not been examined as a witness, therefore the adverse inference should be drawn against the J.Dr. and the property was in favour of the petitioner after the attachment as such the transaction made in favour of the petitioner is void. On such finding the trial court has dismissed the application. Being aggrieved with the said order, the petitioner has filed F.A.O. No. 93 of 2003. In the FAO the appellate court while reiterating the finding of the court below dismissed the appeal. 3. On such finding the trial court has dismissed the application. Being aggrieved with the said order, the petitioner has filed F.A.O. No. 93 of 2003. In the FAO the appellate court while reiterating the finding of the court below dismissed the appeal. 3. Learned counsel for the petitioner submitted that the money receipt which was marked as Ext.1 dated 21.7.1996 is a valid document which proves that the agreement was entered into much prior to the date of attachment i.e. 28.1.1999 and by virtue of such agreement since possession was delivered in favour of the petitioner and petitioner is a bonafide purchaser, the property as claimed should have been adjudicated by the trial court. It reveals from the sale deed that that the vendor has obtained permission from the competent authority to sale the land. The said permission was applied for much prior to the execution of the sale deed and after obtaining the permission, the sale deed has been executed which has not been considered by the court below as such the finding of both the courts below is perverse and are liable to be set aside for non-consideration of the material facts. He further submitted that the land in question being assessed for payment of revenue to the Government, the proclamation of attachment notice must be affixed in the office of the Collector of the district in which the land situates. In the present case the same has not been done and therefore the attachment was not proper and sale deed is valid. The decree holder was only got a decree for realization of money as the judgment debtor has other property those properties should have been attached and the decree holder is entitled to release his money i.e. Rs.45,000/-as per the decree with interest only. Since both the courts below have also not considered the same, the impugned order is liable to be set aside. In support of his contention, he has placed reliance on the decisions reported in AIR 1973 Calcutta 432, 1990(1) OLR (S.C.) 410, AIR 2008 SC 2069 and also AIR (35) 1948 Madras 191, Murugappa Chettiar Vrs. Thirumallia Nadar and others. 4. In support of his contention, he has placed reliance on the decisions reported in AIR 1973 Calcutta 432, 1990(1) OLR (S.C.) 410, AIR 2008 SC 2069 and also AIR (35) 1948 Madras 191, Murugappa Chettiar Vrs. Thirumallia Nadar and others. 4. Learned counsel for the opposite party submitted that the property was attached on 28.1.1999 and since the sale deed was on 10th March, 1999 after the attachment the property was not validly transferred and both the courts below has rightly held that the sale deed is void the same need not be interfered with. He further submitted that during attachment order the petitioner has started further construction over the vacant land and being the wrong doer the petitioner is not entitled to any relief. 5. Learned counsel for the petitioner submitted that in the present writ petition this Court has stayed the further proceeding in Execution Case No. 71 of 1998 and since there was no prohibitory order the petitioner has raised some construction for his necessity. 6. Considering the rival submission of the parties and after going through the record it appears that the decree was for realisation of money and the decree holder is not going to be affected in case judgment debtor will pay the said money with interest. The proclamation of attachment was not affixed in the office of the Collector of the district where the lands situates, which is necessary and the mode of proclamation is to be made for compliance of the statutory provision. Since the attachment was not done as per the statutory provision it cannot be said that there is valid proclamation or attachment. The petitioner who has purchased the property by virtue of a agreement prior to the date of attachment and the money receipt produced by the petitioner which was marked as Ext.1 is of the year 1996 and the said document was not refuted by the decree holder. Admittedly the original judgment debtor defendant No.1 died and her legal representatives are on record. The said defendant No.1 has alienated the property after receiving the consideration money in the year 1996 and also obtained permission from the competent authority to alienate the property and permission was granted in the year 1999. After receiving the permission sale deed was executed, therefore it cannot be said that after knowing the order of attachment the sale deed was executed. 7. After receiving the permission sale deed was executed, therefore it cannot be said that after knowing the order of attachment the sale deed was executed. 7. It is not disputed that the disputed property assessed for payment of revenue for the Government and situated within the revenue district of Cuttack. The said attachment notice should have been affixed in the Office of the Collector of the district in compliance with the provision of Order, 21 Rule, 54 of the Code of Civil Procedure. Hence the conclusion reached by both the courts below are error apparent on the face of the record. Non-compliance of the said procedure vitiates the attachment. The petitioner being a bonafide purchaser his interest need be protected and the decree holder can get refund of his money from the J.Dr. Accordingly this Court sets aside the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India and directs the executing court to proceed with the execution case and dispose of the same as expeditiously as possible. The writ petition is allowed. In the facts and circumstances no costs.