Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 250 (CAL)

Target Construction v. Malabika Maity

2018-02-13

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2018
JUDGMENT : SANJIB BANERJEE, J. 1. The appeal arises out of the rejection of a petition that was originally fashioned as one under Section 47 of the Code of Civil Procedure, but was later required to be regarded as one under Order XXI Rule 58 thereof. 2. The property in question is the land and buildings used as a cold storage and is in Village Baikunthapur, P.O. Sankarpur, P.S. Daspur, District Paschim Medinipur. 3. The appellant herein instituted a money suit in the year 2003 in a court in Ghatal, claiming a principal sum of Rs. 70,96,857.90/-. The claim was on account of the balance dues for the construction of the cold storage and ancillary works. The plaint relating to the suit included a schedule describing the cold storage and the land relating thereto. Such suit was decreed on October 12, 2004 on the following lines: “That the suit be and the same is decreed ex-parte in part with cost against the defendants. The plaintiff do get a decree for Rs. 70,96,857.90p against the defendants together with interest from 20.01.2003 till the date of realisation over the said amount at the rate of 6% per annum. The defendants are directed to repay the decretal amount with interest within four months from this date. The defendants are permanently restrained from transferring the ‘A’ schedule suit store to third party till realisation of the decretal amount in full and that the sum of Rs. 86,275.00 to be paid by the Defendant to the plaintiff on account of the costs of this suit, with interest thereon at the rate of Nil percent per annum from this date to date of realization.......” 4. Execution proceedings were levied early in 2005. In the tabular statement filed to launch the execution, it was indicated that the manner of execution should be by attaching the relevant property. 5. Order No. 12 passed on April 6, 2006 in M. Ex. 1/2005 recorded as follows: “Dhr. files hazira through Ld. Advocate. It appears from the case record that the writ of attachment has already been filed. Issue the same at once fixing 7/6/06 for execution report. Office to comply the same.” 6. On September 11, 2006, Order No. 16 was passed in the execution case: “Dhr. files hazira through Ld. Advocate. Writ of attachment is received after execution. It appears from the execution report filed by the P.S Sk. Issue the same at once fixing 7/6/06 for execution report. Office to comply the same.” 6. On September 11, 2006, Order No. 16 was passed in the execution case: “Dhr. files hazira through Ld. Advocate. Writ of attachment is received after execution. It appears from the execution report filed by the P.S Sk. Fayez Ahamed that the writ of attachment served upon Jdr. by beating drums along with witnesses. Let the execution report be kept with the record. Hd. Ld. Advocate for the Dhr. Hence, it is. Ordered That the execution case be and the same is disposed off an full satisfaction of the claim. Issue pay voucher in favour of process server namely Sk. Payel Ali amounting to Rs. 50/- towards drams which was deposited vide P. cash receipt No. 18 dated 28.07.06. Later As the property in question has already been attached by the order of the Court. Now before sale the public action attached property is to be heard first. Accordingly notice is to be appear judgment debtor whether they have any objection if the attach property in put sale public action. To 27.09.06 for S.R. Dhr. is directed to take steps at once.” 7. On December 12, 2006, the judgment-debtors entered appearance in the execution and sought time for filing a written objection. For nearly a year thereafter, the written objection was not forthcoming from the judgment-debtors and, on August 29, 2007, the matter was taken up for issuance of a writ of proclamation for sale of the property to realise the decretal debt. The executing court found that a writ of proclamation of attachment had already been issued and served by beating of drums in the presence of witnesses and observed that the process of attachment of the immovable property had been completed. The writ of proclamation of sale was directed to be issued under Order XXI Rule 66 of the Code and the Nazir was directed to take appropriate steps. The sale proclamation was directed to be published in newspapers, including in the Anandabazar Patrika. An order of December 4, 2007 recorded the publication of such proclamation in the said newspaper on November 27, 2007. 8. Within days of such publication in the newspapers, three sets of miscellaneous proceedings were lodged in the execution case: the first by Canara Bank and the two others by one Bibhas Maity and his brother Subhas Maity. An order of December 4, 2007 recorded the publication of such proclamation in the said newspaper on November 27, 2007. 8. Within days of such publication in the newspapers, three sets of miscellaneous proceedings were lodged in the execution case: the first by Canara Bank and the two others by one Bibhas Maity and his brother Subhas Maity. All three miscellaneous cases were under Order XXI Rule 58 of the Code. Bibhas Maity is the husband of the first respondent herein and Subhas is the brother-in-law of such respondent. 9. The bank disclosed in its application that the bank had a claim of about Rs. 5.38 crore against the principal judgment-debtor in the execution proceedings and prayed for a stay of the proclamation of sale. Interestingly, the bank claimed at paragraph 27 of its petition under Order XXI Rule 58 of the Code that the bank “would not have also any objection if the property is sold at a price higher than Rs. 5,50,00,000/- ....” The bank contended that if such consideration was received for the property “the dues of not only the decree-holder but also of your petitioner (Canara Bank) would be satisfied.” The prayer in such petition also reflected the alternative case made out in the body of the petition that the proclamation of the sale be stayed or “the property may be sold and the dues of the (Bank).... be first paid to the (Bank) or be remitted to the Kolkata Debts Recovery Tribunal, Unit No. II to the credit of O.A. No. l29 of 2004...” 10. On the bank’s petition, an initial order was passed on December 11, 2007 staying the order dated August 29, 2007, by which the proclamation of sale was issued, till the disposal of the bank’s petition. 11. The decree-holder, the appellant herein, applied for a modification of the blanket order of stay passed on December 11, 2007. Such application was disposed of on contest by an order of May 11, 2013, by providing as follows: “The Petitioner/OP Target Construction petition under Section 151 C.P.C. is allowed on contest. The OP/Petitioner Canara Bank is directed to abide by the order passed by this court in the instant Misc. Case being Order no. Such application was disposed of on contest by an order of May 11, 2013, by providing as follows: “The Petitioner/OP Target Construction petition under Section 151 C.P.C. is allowed on contest. The OP/Petitioner Canara Bank is directed to abide by the order passed by this court in the instant Misc. Case being Order no. 34 dated 11.12.2007 and remain abstain from disposing/transferring/altering or changing the nature or character in any way of the properties in question attached by this court in Money execution case no. 1/2005 arising out of Money suit no. 2/03 till disposal of the Misc. Cases 6/07, 6A/07 and 6B/07.” 12. As recorded above, the other two miscellaneous cases, also under Section XXI Rule 58 of the Code, were filed by Bibhas Maity and Subhas Maity, respectively, the husband and the husband’s brother of first respondent Malabika, who was subsequently the auction- purchaser in a sale conducted by the Recovery Officer attached to the relevant Debts Recovery Tribunal at the behest of Canara Bank. 13. By the time the order of restraint of May 11, 2013 was passed, the bank had caused a sale notice to be issued, pertaining to the immovable property in question and other properties. Such sale notice was published in several newspapers. To boot, it was indicated in the notice pertaining to the relevant immovable property as follows: “Misc. application filed by Canara Bank against the execution proceedings of M/s. Target Constructions vs. M/s. Premier Agro Cool Tech Pvt. Ltd. is yet to be disposed off (sic of).” 14. Pursuant to such notice, the sale of the subject property was concluded in favour of the auction-purchaser first respondent on or about May 16, 2013 at a consideration of Rs. 2,90,60,100/- which barely met the reserve price of Rs. 2.90 crore set for the property. 15. Having purchased the property and even having her name entered in the record of rights after obtaining the possession of such property, the first respondent instituted Misc. Case No. 2 of 2015 in the pending execution proceedings of the appellant in the Ghatal court, ostensibly under Section 47 of the Code. The prayer made in the relevant petition was for the execution case to be sent and transferred to the relevant Debts Recovery Tribunal. 16. Case No. 2 of 2015 in the pending execution proceedings of the appellant in the Ghatal court, ostensibly under Section 47 of the Code. The prayer made in the relevant petition was for the execution case to be sent and transferred to the relevant Debts Recovery Tribunal. 16. Quite unsurprisingly, such misconceived petition carrying a meaningless prayer was dismissed without much ado by the executing court whereupon the order of dismissal came to be challenged by way of a petition carried to this court under Article 227 of the Constitution. It was presented before this court in course of such proceedings, CO 2744 of 2015, that Miscellaneous Case No. 2 of 2015 was really intended to be a petition under Order XXI Rule 58 of the Code though the nomenclature was wrong in its reference to Section 47 of the Code. By an order dated September 7, 2015 this court set aside the order impugned dated May 21, 2015 and directed the executing court “to consider the application afresh treating the same to have been filed under Order XXI Rule 58 of the Code of Civil Procedure..... by recording reasons on all the points canvassed before it, be on point of law or on facts.” 17. It is, thus, on rebound that the order impugned herein dated October 9, 2015 came to be passed upon a fresh consideration of the first respondent’s petition by treating it to be one under Order 21 Rule 58 of the Code. 18. By the order impugned, the executing court noticed that by an order dated May 11, 2013 “Canara Bank was directed to abide by the order passed by this Court on 11.12.2007 and remain abstain from disposing/altering/changing the nature and the character of the properties in question.” The court noticed that, in the meantime, the miscellaneous cases filed by Canara Bank and the two close relatives of the auction-purchaser first respondent had been “dismissed for non-prosecution by order no. 234 dated 28.08.2014.” Two questions were framed for adjudication in the order impugned: “Whether the property which the auction-purchaser purchased in E-auction conducted by the Recovery Officer of Kolkata Debts Recovery Tribunal No. II was subject to any order of attachment passed by this Ld Court? 234 dated 28.08.2014.” Two questions were framed for adjudication in the order impugned: “Whether the property which the auction-purchaser purchased in E-auction conducted by the Recovery Officer of Kolkata Debts Recovery Tribunal No. II was subject to any order of attachment passed by this Ld Court? “Whether in view of the order of attachment, if there be any, sale which was confirmed by the Recovery Officer of Kolkata Debts Recovery Tribunal No. II by order dated 16.05.2013 should be set aside by this Ld. Court.” 19. The executing court held, in course of the adjudication, inter-alia, as follows: “Here in this case from the meticulous scrutiny of the case record, I find that on no prior occasion, no formal order of attachment was passed. It appears from the record that on 06.04.2006 an order was passed by this Ld. Court recording that writ of attachment has already been filed. Prior to 06.04.2006 no formal order of attachment was passed prohibiting the judgment-debtor from transferring the property. Even on subsequent occasions also no formal order of attachment was passed. In fact on 11.09.2006 an order was recorded by this Ld. Court that the execution case be and the same is disposed of on full satisfaction of the claim. On the same date it is also recorded in the order that the property has already been attached. The judgment debtor was directed by the same order to appear before this Ld. Court. On 29.08.2007 the writ of proclamation of sale of immovable property was issued. Nazir was directed to take steps accordingly. From the perusal of the different orders from order dated 03.04.2005 till today I do not find any formal order of attachment. .......... “As I have already hold (sic. held) that there was no formal order restraining the transfer of the property. There was no legal obligation of the part of the Canara Bank to place those facts of execution proceeding before Kolkata Debts Recovery Tribunal No. II, because the property being the subject matter of this application was mortgaged to the bank prior to the date of judgment/decree.” 20. The appellant submits that there was no occasion for the executing court to hold in the order impugned that no order of attachment had been passed. The appellant submits that there was no occasion for the executing court to hold in the order impugned that no order of attachment had been passed. The judgment in support of the decree passed on October 12, 2004 clearly recorded that the appellant had applied under Order XXXVIII Rule 5 of the Code to which the principal defendant had filed a written objection. Upon due assessment of the matter and the indisputable claim of the appellant, an order in the nature of attachment before judgment was passed by restraining the defendants from transferring the immovable property described at Schedule ‘A’ to the plaint to any third party till the decretal dues were discharged in full. The appellant refers to Order XXXVIII Rule 11 of the Code that provides that when a property is under attachment and a decree is subsequently passed in favour of the plaintiff “it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.” 21. The appellant suggests that the executing court accepted the legal position envisaged in Order XXXVIII Rule 11 of the Code and proceeded only to comply with the formal requirements of Order XXI Rule 54 pertaining to an order of attachment. The appellant refers to the orders noticed above by which the writ of attachment was issued and the executing court also recorded that the writ of attachment had been served upon the judgment-debtor by “beating drums along with witnesses.” The appellant refers to the issuance of the proclamation of sale in terms of Order XXI Rule 66 of the Code and submits that there was no irregularity in the procedure adopted by the trial court or the executing court, far less any illegality therein. 22. At any rate, the appellant contends, that the concerned bank and the husband and another close relative of the auction-purchaser first respondent accepted that there was an order of attachment is undeniable and this is why they applied under Order XXI Rule 58 of the Code to object to such attachment. 22. At any rate, the appellant contends, that the concerned bank and the husband and another close relative of the auction-purchaser first respondent accepted that there was an order of attachment is undeniable and this is why they applied under Order XXI Rule 58 of the Code to object to such attachment. The appellant asserts that since an express injunction was issued in the bank’s miscellaneous case restraining the bank from transferring the property or creating any third party rights in respect thereof, the bank had no title to transfer to the auction-purchaser and the auction-purchaser has obtained no title from the utterly invalid transaction of sale of such property on or about May 16, 2013 which the auction-purchaser sought to sustain by applying before the executing court. The appellant maintains that not only does the bank’s conduct in seeking to sell the property in breach of the subsisting injunction expressly passed against it not clothe such transaction with any semblance of legality, but such conduct also amounts to contempt. The appellant says that even the sale notice pursuant to which the purported sale was conducted referred to the pendency of the bank’s miscellaneous case. Further, the injunction that was passed on May 11, 2013 was after the publication of the sale notice, to the knowledge of the bank and, as such, the transaction of sale has to be regarded as void. 23. The appellant claims that even though the appellant does not have to establish any mala-fides against the auction-purchaser first respondent, yet it would be evident that this auction-purchaser was aware of the order of attachment as her husband and brother-in-law had applied to have the attachment order vacated, but later abandoned such essay. The appellant points out that there is no indication in the first respondent’s application carried to the executing court that the first respondent was not aware of the order of attachment prior to bidding therefor or that the first respondent had suddenly come to know of the pendency of the execution case after having purchased the property. The appellant submits that in view of the express reference in the sale notice to the pendency of the execution proceedings, the auction- purchaser could not have pretended to be unaware of the execution case. The appellant submits that in view of the express reference in the sale notice to the pendency of the execution proceedings, the auction- purchaser could not have pretended to be unaware of the execution case. The appellant suggests that the appropriate course of action would have been for the auction-purchaser to have approached the executing court and obtained prior permission, on cogent grounds, to purchase the property. The appellant says that the ex post facto attempt by the auction-purchaser to undo the colossal illegality involved in the sale transaction should have been thrown out of hand. 24. The appellant refers first, to a judgment reported at Anita International vs. Tungabadra Sugar Works Mazdoor Sangh, (2016) 9 SCC 44 for the proposition that a sale in violation of a subsisting order of court is invalid and such invalidity cannot be cured even if the injunction is subsequently vacated. The matter before the Supreme Court involved an order passed early in the year 2000 and at a time when the mantra of tribunalisation was not so overwhelming as it later grew to denude civil courts and even High Courts of much of their authority. A company had gone into liquidation and a bank had applied under Section 446 of the Companies Act, 1956 for leave to proceed against the company in liquidation before the appropriate Debts Recovery Tribunal. The company judge in the Madras High Court granted such permission but made it subject to the condition, inter-alia, that “no coercive steps are taken against the assets of the company during or after the conclusion of the proceedings before the Tribunal.” In 2003, the bank applied to the company court seeking permission to execute the recovery certificate obtained by such bank. Paragraph 42 of the report records that the registry of the Madras High Court returned the application with an endorsement that the leave of the High Court was not necessary. Such action of the registry must have been prompted by the judgment reported at Allahabad Bank vs. Canara Bank, (2000) 4 SCC 406 which held that it was not necessary for a bank or financial institution to obtain leave of the company court under Section 446 of the Act of 1956 to prosecute a claim against a company in liquidation before the Debts Recovery Tribunal. The bank in the reported case caused a Recovery Officer to proceed with the sale of the properties of the company in liquidation. 25. On behalf of the auction-purchaser before the Supreme Court, it was contended that since the authority of a Recovery Officer under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was exclusive, the same could not have been interfered with. The Allahabad Bank judgment and subsequent judgments on similar lines were also placed. The court refused to accept the submission and held that the order of the company court was binding on the Recovery Officer, the sale conducted by the Recovery Officer was “clearly impermissible” and deserved to be set aside. The Supreme Court emphasised as follows: “54........that it is not open either to parties to a lis or to any third parties to determine at their own that an order passed by a court is valid or void. A party to the lis or a third party who considers an order passed by a court as void or non est, must approach a court of competent jurisdiction to have the said order set aside on such ground as may be available in law. However, till an order passed by a competent court is set aside … the same would have the force of law and any act/action carried out in violation thereof would be liable to be set aside.......” 26. A later judgment, reported at Robust Hotels Private Limited vs. EIH Limited, (2017) 1 SCC 622 has been placed by the appellant where the court noticed the dictum in Anita International, endorsed the same and applied it. 27. The principal judgment-debtor in the appellant’s execution proceedings is represented and it is submitted on behalf of the relevant company that such judgment-debtor is the real sufferer as the property has been sold at a gross under-value to the auction-purchaser which not only does not satisfy Canara Bank’s claim, but also robs such judgment-debtor of its right to obtain appropriate consideration for its asset. The judgment-debtor also refers to the so-called political connection of the husband of the auction-purchaser. The judgment-debtor also refers to the so-called political connection of the husband of the auction-purchaser. However, such contentions are irrelevant in the context in the present appeal where the propriety of the sale of the asset is not being tested in general; the only adjudication is whether such sale has been conducted in breach of a subsisting injunction and whether the auction-purchaser was entitled to obtain the approval of the executing court in respect of such sale transaction. 28. The auction-purchaser says that an order of attachment is not like any ordinary injunction and unless the legal formalities as recognised in the Code are complied with, an order of attachment does not take effect. The auction-purchaser says that the decree passed in the appellant’s money suit did not specify that the property covered by Schedule ‘A’ to the plaint relating to such suit was to remain attached. A simple order of injunction was passed in respect of such property. According to the auction-purchaser, no fresh or specific order of attachment was passed in the execution proceedings. The auction-purchaser contends that if the initial order of attachment was bad, it could not have survived the decree for the execution proceedings to inherit the same. The auction-purchaser emphasises on the various modes of execution available to satisfy a money decree. The auction-purchaser places Order XXI Rule 54 of the Code and maintains that the provision is mandatory and indispensable. 29. The auction-purchaser first refers to a judgment reported at Bharat Chandra Pal vs. Gouranga Chandra Pal, AIR 1927 Cal 885 where a Division Bench of this court held that for an immovable property to be attached not only need an order be passed prohibiting the judgment-debtor from transferring the property, but the order has to be proclaimed on the property or in its neighborhood by beating of drums and a copy of such order ought to be affixed on some conspicuous part of the property and also in a conspicuous part of the courthouse. In that case, no prohibitory order was made available to the peon to publish and, though the peon went to the locality and proclaimed the order of attachment by beating of drums, there was no affixation of the order in the relevant form in Appendix ‘E’ to the Code. 30. In that case, no prohibitory order was made available to the peon to publish and, though the peon went to the locality and proclaimed the order of attachment by beating of drums, there was no affixation of the order in the relevant form in Appendix ‘E’ to the Code. 30. The next judgment cited by the auction-purchaser is reported at Muthiah Chetti vs. Palaniappa Chetti, AIR 1928 PC 139 and is for the same proposition. The Privy Council observed that for an order of attachment to be effective there had to be an order and due execution thereof in accordance with the rules; that the mere making of an order of attachment without it being proclaimed as required by law would not suffice. 31. In similar vein, another judgment reported at Murugappa Chettiar vs. Thirumalai Nadar, AIR 1948 Mad 191 has been brought where the court observed that “an attachment cannot be said to have been made unless and until the provisions of both the sub-rules have been complied with, that is to say, there must be (1) an order prohibiting the judgment-debtor from transferring or charging the property in any way and (2) that order must be proclaimed by beat of tom-tom near the property and copies of the prohibitory order must be affixed on a conspicuous part of the property, on a conspicuous part of the court-house and where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate......” 32. A full Bench judgment reported at Tapeshwar Missir vs. Santokh Singh, AIR 1969 Pat 299 has been carried to highlight the same aspect. 33. In response to the several judgments brought by the auction-purchaser to bear on the mandatory requirement of Order XXI Rule 54 of the Code to make an order of attachment effective, the appellant refers to a Full Bench judgment of the Kerala High Court reported at Ramesan vs. Kunhipalu, AIR 1977 Ker 119 where all the judgments cited by the auction-purchaser herein were considered and it was held that in view of Section 114 of the Evidence Act, in the absence of any evidence to the contrary it has to be presumed that all the necessary formalities including the affixation of copies of order of attachment were complied with. 34. 34. The primary point that arises for consideration in this matter is whether there was a subsisting order of attachment in respect of the property in question when the sale was concluded at the behest of Canara Bank in favour of the auction-purchaser first respondent. The ancillary issue is whether, despite there being no order of attachment in respect of the relevant property, the injunction issued on May 11, 2013 made the sale invalid. 35. Before addressing the core issue and the ancillary question, a minor matter referred to by the auction-purchaser must be dealt with. According to the auction-purchaser, the injunction that was issued on May 11, 2013, at the highest, restrained Canara Bank from transferring the relevant property; it could not have impinged on the authority of the Recovery Officer under the Act of 1993 to conclude the same. In support of such contention, the auction-purchaser points out that the sale notice that was published was issued by the Recovery Officer and even the sale deed has been executed by such Recovery Officer and not by the bank. 36. There is no merit in such contention of the auction-purchaser. The facile way to deal with such submission is by referring to the judgment in Anita International where the order of the company court restrained coercive steps being taken against the assets of the company in liquidation and was passed on an application of the bank without such order imposing any specific bar on any Recovery Officer. As noticed above, it was also contended on behalf of the auction-purchaser in that case that the Recovery Officer under the Act of 1993 had exclusive authority to conduct the sale and his authority could not have been curbed by any order of injunction. The Supreme Court completely disagreed with such submission and repelled it. 37. The more substantive ground to deal with such minor submission of the auction- purchaser is that it is only a person who possesses title in an immovable property who can pass on the same to a transferee and not any other. It is common in suits for specific performance of an agreement for the registrar attached to a court to execute the deed of conveyance in favour of the decree-holder but that is as a court-appointed substitute for a judgment-debtor. The role of the Recovery Officer under the 1993 Act is no different. It is common in suits for specific performance of an agreement for the registrar attached to a court to execute the deed of conveyance in favour of the decree-holder but that is as a court-appointed substitute for a judgment-debtor. The role of the Recovery Officer under the 1993 Act is no different. It is a matter of record and not in dispute that Canara Bank had proceeded against the second respondent judgment-debtor in the appellant’s execution proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Section 13 (4) of the Act 2002 empowers a secured creditor to, inter-alia “take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset.” The property of the borrower is recognised by such law to be the property of the secured creditor for the secured creditor to have the right to transfer the same by way of sale. The sale in this case was also by Canara Bank, albeit through the agency or instrumentality of the Recovery Officer connected with the relevant Debts Recovery Tribunal. The sale was by Canara Bank to the acution- purchaser and if Canara bank was under any disability to pass on title to the auction-purchaser, that the document was executed by the Recovery Officer is of no consequence or legal import. 38. The decree obtained by the appellant in 2004 records an order of attachment though the decree itself expresses the order in the form of an injunction. There could have been two possibilities: that the order of attachment had been passed prior to the decree, which the decree continued by inarticulately expressing it in the form of an injunction; or, the order of attachment was passed for the first time in course of the decree and in the form of an ordinary injunction. 39. It does not appear to have been the auction-purchaser’s case in the court below that the pre-decree order of attachment or the order of attachment that was passed together with the decree was ineffective. There is no evidence in such regard either way. We may proceed on the basis that the attendant formalities required to be complied with for an order of attachment to be effective, had not been so done at the pre-decree stage. There is no evidence in such regard either way. We may proceed on the basis that the attendant formalities required to be complied with for an order of attachment to be effective, had not been so done at the pre-decree stage. If there was a subsisting order of attachment and the same was merely continued by the decree, the attachment may not have been effective at the time that it was passed but upon the writ of attachment being expressly issued as recorded in the executing court’s order of April 6, 2006 and the proclamation of such attachment being completed by the beating of drums at or around the property as recorded in the order of September 11, 2006, all the attendant formalities were complied with. Indeed, neither the transferor, Canara Bank, nor the close relatives of the auction-purchaser, including her husband, asserted that there was no order of attachment. They all came to object to the order of attachment by asserting their independent rights to the property in question. Canara Bank obtained an order for its benefit that permitted it to pursue its recovery proceedings before the tribunal when the executing court stayed the operation of its order of proclamation of sale passed on August 29, 2007. It was an erroneous order in that it did not impose any embargo on the bank simultaneously as staying its own hands to proceed with the sale in execution. Such error was corrected on the appellant’s application under Section 151 of the Code by the order dated May 11, 2013. At such time, the bank’s application under Order XXI Rule 58 of the Code still remained pending and undecided. If there was any irregularity in the initial order of attachment that was passed in the suit or if the order of attachment could not have been regarded as such initially, upon the writ of attachment being issued and the proclamation being made, the attachment was made effective. There is no evidence to the contrary. 40. If there was any irregularity in the initial order of attachment that was passed in the suit or if the order of attachment could not have been regarded as such initially, upon the writ of attachment being issued and the proclamation being made, the attachment was made effective. There is no evidence to the contrary. 40. Alternatively, if it is assumed that it was only a simple order of injunction that was passed against the judgment-debtors in respect of the property in question and not a full-fledged order of attachment, since it was the intention of the trial court to pass the order in the nature of attachment the inadequacy in the order was made up by the subsequent steps taken by the executing court and it could no longer be said that there was no effective order of attachment in place. 41. It is at this juncture that a distinction ought to be made between an order of injunction simpliciter restraining a person from dealing with or transferring an immovable property and an order of attachment in respect of such property. In a sense, an order of injunction simpliciter in such a case operates in personam against the person injuncted and may not necessarily attach to the property itself. In the case of an order of attachment, it fastens to such property and binds all seeking to deal with such property. That is the rationale for the wide publication of an order of attachment and for it to be proclaimed by beating of drums and for the writ in appropriate form to be affixed at a prominent place in the court-house, affixed conspicuously on the property and served in the appropriate office of the collectorate. It is a warning to the public at large interested in dealing with such property. It is thus that objectors seeking to assert rights in respect of the property can approach the court under Order XXI Rule 58 of the court whereupon an adjudication is made, the outcome whereof is venerated to the level of a decree passed in a suit. 42. At the very lowest, it may be presumed for argument’s sake that there was no order of attachment subsisting in respect of the property in question at the time that such property was sold in auction by the bank to the auction-purchaser. 42. At the very lowest, it may be presumed for argument’s sake that there was no order of attachment subsisting in respect of the property in question at the time that such property was sold in auction by the bank to the auction-purchaser. Even then, there was an express order of injunction restraining the bank from transferring the property or creating any third party rights in respect thereof that was passed on May 11, 2013 prior to the sale being conducted on or about May 16, 2013. Such injunction completely precluded the bank from undertaking the sale or going through with the transaction for which an ex post facto approval by way of the thoroughly misconceived petition was carried to the executing court. If the transferor had no title to confer on the auction-purchaser, the auction- purchaser got nothing by way of title despite the sale deed executed in her favour by the Recovery Officer. That such order of injunction passed on May 11, 2013 was in place when the purported sale took place is beyond doubt and has not been disputed by any party. Even if the finding as to the nonexistence of the order of attachment as rendered in the impugned order is taken to be correct, the injunction of May 11, 2013 is deemed to have been vacated by the order impugned itself upon it finding that no order of attachment had been passed at all. Thus, the embargo imposed by the order of May 11, 2013 was lifted only by the order impugned dated October 9, 2015. The sale conducted in violation of the subsisting injunction could not have been approved nor its invalidity undone by any imaginary interpretation. 43. Whether by virtue of the order of attachment that remained effective on the date when the sale was conducted in favour of the auction-purchaser or by virtue of the order of injunction of May 11, 2013, Canara Bank could not have transferred the property to the auction-purchaser or any other. Such sale is invalid. 44. FMA No. 319 of 2016 is allowed by setting aside the judgment and order impugned dated October 9, 2015 by holding that the order of attachment in respect of the property covered by Schedule ‘A’ to the plaint relating to the appellant’s money suit remains effective, valid and subsisting. Such sale is invalid. 44. FMA No. 319 of 2016 is allowed by setting aside the judgment and order impugned dated October 9, 2015 by holding that the order of attachment in respect of the property covered by Schedule ‘A’ to the plaint relating to the appellant’s money suit remains effective, valid and subsisting. Since the mortgage in respect of such property was created by the judgment-debtors in the appellant’s execution proceedings prior to the original injunction or order of attachment being passed, Canara Bank will be entitled to assert its rights in respect of the property in question in accordance with law. The auction-purchaser first respondent has no manner of right in respect of the relevant property and will be entitled to recover the consideration in accordance with law. The appellant will be entitled to pursue the execution proceedings but its right to receive the proceeds from the sale of the attached immovable property will be subject to the superior rights of Canara Bank in such regard. 45. CAN No. 7982 of 2016 and CAN No. 11575 of 2017 are disposed of in the light of the discussion above. 46. There will no order as to costs. 47. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.