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2019 DIGILAW 253 (AP)

M. Rama Devi v. K. Anuradha

2019-09-25

M.VENKATA RAMANA

body2019
ORDER : M. Venkata Ramana, J. 1. This civil revision petition is directed against the order of the Court of learned Principal Senior Civil Judge, Anantapuramu in E.A. No. 417 of 2017 in E.P. No. 262 of 2011 in O.S. No. 105 of 2004, dated 02.07.2018. 2. The DHr in E.P. No. 262 of 2011 in O.S. No. 105 of 2004 is the petitioner herein as well as in E.A. No. 417 of 2017. The respondents are described as JDRs and who were also respondents in E.A. No. 417 of 2017. 3. E.A. No. 417 of 2017 was filed under Section 64 C.P.C., by the petitioner to reject E.A. No. 272 of 2017 in the above E.P. 4. E.A. No. 272 of 2017 was filed by the 1st respondent making a claim to the property requesting to set aside the sale of property in dispute held on 02.06.2017, in court-auction. 5. A decree was passed in a money claim in O.S. No. 105 of 2004 in favour of the 3rd respondent against the 2nd respondent on the file of the Court of learned Principal Senior Civil Judge, Anantapuramu for recovery of money, on 29.09.2004. The above decree was transferred, according to the petitioner, in her favour under a registered deed of transfer on 17.11.2011. Thus, she claimed that there was an assignment of decree in her favour. 6. The petitioner filed E.P. No. 262 of 2011 in execution of the above decree as an assignee, and sale was ordered therein. The sale was conducted in the above Court on 02.06.2017 wherein the petitioner became highest bidder, since the auction was knocked down in her favour. The above E.P. stood posted for confirmation of sale. 7. It is pertinent to refer that the 3rd respondent, as plaintiff in the suit, sought attachment of the property in dispute, before judgment, under Order XXXVIII, Rule 5 C.P.C., during pendency of the suit in I.A. No. 319 of 2004 and the above property was attached on 19.06.2004. 8. The 1st respondent filed O.S. No. 142 of 2004 on the file of the Court of learned Additional Senior Civil Judge, Anantapuramu, against the 2nd respondent basing on an unregistered agreement for sale dated 02.11.2001 for specific performance of contract and the suit was decreed in her favour and against the 2nd respondent. 8. The 1st respondent filed O.S. No. 142 of 2004 on the file of the Court of learned Additional Senior Civil Judge, Anantapuramu, against the 2nd respondent basing on an unregistered agreement for sale dated 02.11.2001 for specific performance of contract and the suit was decreed in her favour and against the 2nd respondent. In execution of the decree therein the 1st respondent laid E.P. No. 8 of 2005 and pursuant thereto the Court of learned Principal Senior Civil Judge, Anantapuramu executed a registered sale deed in respect of the property in dispute on 05.10.2005. 9. The 1st respondent is claiming that she has' been in effective possession and enjoyment of the property in dispute upon obtaining possession of the same as per the orders in E.A. No. 902 of 2005 and since she was delivered possession through the process of the Court on 28.08.2006. According to the 1st respondent, the purchase of property by her under agreement for sale on 02.11.2001, was for valuable consideration of Rs. 4,00,000/- and the above sale agreement was executed not only by the 2nd respondent. but also by her husband. 10. E.A. No. 47 of 2006 was filed by the petitioner raising objections, relating to delivery of possession of the property in dispute when sought by the 1st respondent in E.A. No. 902 of 2005 and the Court below had rejected such objections. According to the 1st respondent, suppressing the above fact, the petitioner filed E.P. No. 262 of 2011 in collusion with the 3rd respondent. 11. O.S. No. 134 of 2006 was filed by the petitioner against the 2nd respondent and a decree was passed therein, in execution of which, the petitioner laid E.P. No. 75 of 2007 in the Court below, seeking sale of the property in dispute. Then, according to the 1st respondent, she laid E.A. No. 506 of 2007 questioning the sale and thereupon, the petitioner filed C.R.P. No. 5519 of 2008 on the file of this Court questioning maintainability of the claim made by the 1st respondent. However, the above C.R.P. was dismissed on 07.09.2009 confirming the order of the Executing Court, which held that question of maintainability of objection of the 1st respondent need not be decided as a preliminary issue. However, the above C.R.P. was dismissed on 07.09.2009 confirming the order of the Executing Court, which held that question of maintainability of objection of the 1st respondent need not be decided as a preliminary issue. When E.A. No. 439 of 2008 was filed by the 1st respondent against the maintainability of E.P. No. 75 of 2007, the Executing Court dismissed it, against which the 1st respondent preferred C.R.P. No. 2599 of 2009 on the file of this Court. This Court allowed C.R.P. No. 2599 of 2009 and dismissed E.P. No. 75 of 2007. 12. The contention of the petitioner in the Executing Court was that the alleged sale claimed by the 1st respondent cannot have any effect, in as much as in terms of Section 64 C.P.C. any private transfer or delivery of the property attached, shall be deemed void against all claims enforceable under the attachment. The 1st respondent refuted this contention, setting put her independent claim to the property in dispute, justifying her claim. 13. Sri K.G. Krishna Murthy, learned Senior Counsel appearing for the petitioner, referring to the date of attachment of property in dispute before judgment and agreement for sale claimed by the 1st respondent as well as the sale deed registered by the Court below in her favour, strenuously contended in this revision petition that the sale so claimed by the 1st respondent cannot have any effect, upon application of Section 64 (2) C.P.C. Thus, it is contended that E.A. No. 272 of 2017 is bad and could not have been maintained. Thus, rejection of E.A. No. 272 of 2017 is sought, allowing this C.R.P. 14. On behalf of the 1st respondent Sri N. Aswatha Narayana, learned counsel for the 1st respondent, while referring to the facts stated supra, strenuously contended that E.P. was instituted to make a wrongful gain in collusion, by the petitioner as well, as the 2nd respondent, to defeat the rights of the 1st respondent, who has been in effective possession and enjoyment after obtaining delivery of the property through process of the Court, lawfully. It is further contended for the 1st respondent that Section 64 C.P.C. cannot be applied, in the facts and circumstances of the case in as much as the property in dispute was subject matter of sale in favour of the 1st respondent on 02.11.2001 itself and it was long prior to attachment of property through process of the Court, when it was allegedly effected on 19.06.2004. Thus, repelling the contentions on behalf of the petitioner, it is sought that the revision petition be dismissed. In this context, Sri Aswatha Narayana, learned counsel further contended that the property has been developed by constructing a house spending more than Rs. 30,00,000/- by the 1st respondent which fact is suppressed by the petitioner in E.P. proceedings. 15. Now, the point for determination is -whether the objection of the petitioner as to maintainability of E.A. No. 272 of 2017 in E.P. No. 262 of 2011 in O.S. No. 105 of 2004 on the file of Court of learned Principal Senior Civil Judge, Anantapuramu, is justified? 16. Section 64 C.P.C., reads as under: "64. Private alienation of property after attachment to be void: (1) 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. (2) nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. Explanation: For the purposes of this Section, claims enforceable under an attachment include claims for the ratable distribution of assets." 17. Adverting to the amendment brought out to Section 64 C.P.C., by Act 22 of 2002, with effect from 01.07.2002, Sri K.G. Krishna Murthy, learned Senior Counsel for the petitioner relied on Salem Advocate Bar Association, T.N., v. Union of India, (2005) 6 SCC 344 : 2005 (6) ALT 19.1 (DN SC), where in paragraph-25 with reference to its scope and applicability it was observed: 25. Section 64 (2) in the Code has been inserted by Amendment Act 22 of 2002. Section 64, as it originally stood, has been renumbered as Section 64 (1). Section 64 (2) in the Code has been inserted by Amendment Act 22 of 2002. Section 64, as it originally stood, has been renumbered as Section 64 (1). Section 64 (1), inter alia, provides that where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. The -concept of registration has been introduced to. prevent false and frivolous case of contracts being set up with a view to defeat the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid. If it is unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected. There is no ambiguity in sub-section (2) of Section 64." 18. Further reliance is placed in the same context on behalf of the petitioner in C.S. Mani (Deceased) by LR C.S. Dhanapalan v. B. Chinnasamy Naidu (deceased) by LRs., 2010 (6) ALT 7 (SC) : (2010) 9 SCC 513 . In para-7 of this ruling, referring to legal position regarding determination of attachment, reference is made to Section 64(1) C.P.C., as under: "7. One of the modes of enforcing execution of a money decree is by attachment and sale of the property of the judgment-debtor, (Vide Section 51(b) of the Code). Attachment of an- immovable property is made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge (Vide Order XXI Rule 54 of the Code). Section 64 of the Code of Civil Procedure provides that private alienation of property after attachment is void......" 19. Reliance is also placed on behalf of the petitioner in Kancherla Lakshminarayana v. Mattaparthi Syamala and others (2008) 14 SCC 258 : 2009 (6) ALT 2.1 (DN SC). Section 64 of the Code of Civil Procedure provides that private alienation of property after attachment is void......" 19. Reliance is also placed on behalf of the petitioner in Kancherla Lakshminarayana v. Mattaparthi Syamala and others (2008) 14 SCC 258 : 2009 (6) ALT 2.1 (DN SC). Referring to sale of property in a Court auction, objections raised thereto in terms of Order XXI Rules 92 and 58, as well as the effect of Section 65 C.P.C, it is contended for the petitioner to the effect that sale in favour of an auction purchaser when made absolute under Order XXI Rule 92(1) C.P.C, the title relates back to the date of sale. It was observed in the above ruling that even though such sale stood recorded in favour of the purchaser making it absolute, it shall be subject to earlier right of the objector and his interest in the property. 20. On behalf of the 1st respondent, reliance is placed on Adinarayana v. S. Gafoor Sab, 2004 (2) ALT 780 : AIR 2004 AP 377 , referring to the effect of attachment before judgment under Order XXXVIII Rules 5 and 10. C.P.C., as well as the effect of Section 64 and Section 40 C.P.C. 21. The effect of Section 64 C.P.C., as sought to be adverted to on behalf of the petitioner, cannot be disputed. A private sale when brought out during the subsistence of attachment of a property by the Court shall be void in terms of Section 64 (2) C.P.C. 22. However, the facts and circumstances of the given case are necessarily lead to application of the same. When the facts in dispute in this case as narrated supra are taken into consideration, having regard to long history of the litigation, that had reached this Court several times in between these parties, it cannot be stated that the Executing Court could be in a position to apply the above provision straight away, particularly with reference to the right, title and interest set up by the 1st respondent. 23. Merely because sale deed was executed by the Court in favour of the 1st respondent on 05.10.2005 subsequent to attachment of this property at the instance of the petitioner, viz., on 19.06.2004, the effect of a prior agreement for sale in favour of the 1st respondent and her husband executed by the 2nd respondent on 02.11.2001 cannot altogether be ignored. Merely because sale deed was executed by the Court in favour of the 1st respondent on 05.10.2005 subsequent to attachment of this property at the instance of the petitioner, viz., on 19.06.2004, the effect of a prior agreement for sale in favour of the 1st respondent and her husband executed by the 2nd respondent on 02.11.2001 cannot altogether be ignored. It was not just a mere agreement for sale and it had lead to the 1st respondent filing a suit against the 2nd respondent for specific performance in O.S. No. 141 of 2004 that was also decreed. In execution of this decree, the 2nd respondent had also obtained possession of the property in dispute, basing on a registered sale deed executed by the Court on 05.10.2005. The events that followed subsequently, as narrated supra, as to the objection raised by the petitioner when the 1st respondent sought delivery of possession, orders of this Court and delivery of the property in possession through process of Court in favour of the 1st respondent have in effect in relate to the determination of the core issues in between the parties. 24. Therefore, as rightly observed by the Executing Court, the genuine nature or otherwise of the claim of the 1st respondent set forth in E.A. No. 417 of 2017 questioning the very execution of decree in O.S. No. 105 of 2004 in E.P. No. 262 of 2011, requires detailed investigation and consideration. Thus further observation of the Executing Court that there are no grounds to reject E.A. No. 272 of 2017 is justified, in the backdrop of the fact situation in this case. 25. Therefore, finding no illegality or irregularity in the order passed by the Executing Court nor it warrants interference in this revision petition, this C.R.P. has to be dismissed. 26. In the result, the civil revision petition is dismissed. The Executing Court, having regard to the litigation simmering in between the parties for more than a decade, shall make all efforts to dispose of E.A. No. 272 of 2017 as well as E.P. No. 262 of 2011 in O.S. No. 105 of 2004 within a period of four months from the date of receipt of a copy of this order and any positive effort by the Executing Court in this direction shall stand appreciated. Of course, it shall be subject to cooperation by the parties as well as their learned counsel in the Executing Court. Consequently, interim stay stands vacated. There shall be no order as to costs. 27. As a sequel, pending miscellaneous petitions, if any, shall stand closed.