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Ramadhar Singh and Ors. v/s Ram Narayan Sharma

    Civil Revision No. 1208 of 1987

    Decided On, 01 April 2010

    At, High Court of Bihar


    For the Appearing Parties: Chitragupta Prasad, Binod Singh, Abhay Kumar, Advocates.

Judgment Text

(1.) This case has a chequered history. The petitioners filed objection petition for release of their lands, in question, from the effect of attachment and sale by Court, which objection was registered as Miscellaneous Case being Misc. Case No. 28 of 1977, which was dismissed by learned Sub-Judge, 1st, Jehanabad, by order dated 18-8-1987. Being aggrieved by dismissal of their objection, they filed the present civil revision application. Civil Revision application upon contest was allowed by this Court by judgment and order dated 15-2-1991. In the said judgment this Court held that transmission of attachment order, which was attached prior to attachment by a Court in one Sessions Court to another Subordinate Court under another District Court instead of being routed through other District Judge was in contravention to Section 136 of Civil Procedure Code and that being so, the attachment prior to judging being invalid. The sale of the property, in question, which was ultimately sold by Court pursuant to attachment was not a valid sale and it could have been validly sold by private sale even though

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after the order of attachment. The civil revision application was thus allowed. While allowing the civilly revision, this Court noted another important contention. It noted that in respect of property attached prior to judgment, defendant had entered into an agreement for sale much prior to order of attachment. Registered sale deeds were executed after orders of attachment. It was observed that though not conclusively held that attachment would thus be subject to the agreement for sale and if that be so, then the sale made pursuant to prior agreement of sale could not be vitiated in terms of Section 64 of the Civil Procedure Code. This issue, so noticed in detail, was not thought to be necessary to be decided as civil revision application was allowed on the other issue of Section 136, C. P C.

(2.) The sole opposite party, who was the decree holder and who had purchased the property, in satisfaction of the decree in Court sale, appealed to the Apex Court. The Apex Court after hearing the parties set aside the judgment of this Court in Civil Appeal No. 4394 of 1991 disposed of on 11-5-2001 since reported in (2001) SCC 213 : AIR 2001 SC 2220. They over rule the decision of this Court on the first issue of Section 136, C. P. C. but while doing so, noticed the second aspect of the matter, which was not finally decided by this Court. They thus remanded the matter to this Court for a fresh decision on the second issue clearly noticing that on the second issue the Apex Court has already rendered judgment in the case of Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishan and another since reported in (1990) 3 SCC 291, in which the Apex Court has already held that agreement of sale of land in favour of a party entered into prior to attachment of the land in execution of decree obtained by a third party but sale pursuant to the agreement taking place subsequent to the attachment. It was held that the sale would prevail over the attachment as contractual obligation created by the pre-attach- ment agreement of sale in respect of ownership of the land while the attachment is only of right, title and interest of the judgment debtor and binds on the owner of the land at all future time while the attachment is only of right, title and interest of the judgment debtor. This case has now been pending for final hearing for almost a decade. In between, petitioner No. 2 Rameshwar Singh alias Rameshwar Sharma died and was substituted by his heirs by order of this Court dated 17- 2- 2003. The sole-opposite party, who is the plaintiff-decree holder and purchaser Rajendra Singh also died and was substituted by his heirs and representative by order dated 17-2-2003 of this Court. All substituted persons have appeared by filing fresh Vakalatnamas including Vakalatanama of the opposite party.

(3.) Heard all the parties.

(4.) The facts relevant for disposal of this case are not in dispute any more.

(5.) The plaintiff, who is a decree holder and the sole opposite party filed Money Suit No. 13 of 1974 in the Court of Subordinate Judge, Biharsharif and an order of attachment before attachment of land was passed on 26-3- 1974. The attachment order was issued on 27-3-1974 and is said to have been served on 31-3-1974. On 11-10-1974, the Suit was decreed ex parte. The decree was sent to the Court of Sub-Judge, Jehanabad for its execution since the lands, in question, are situated within the territorial jurisdiction of that Court, which gives rise to Execution Case No. 6/1973. On 25-6-1976, it is said that a fresh attachment of the lands was made by the Executing Court and the decree holder being the plaintiff and the opposite party before this Court himself purchased the lands measuring about 5 acres for a sum of Rs. 5,996.38 paise. On the same very day, the present miscellaneous case as filed in the morning allegedly prior to auction objecting and praying for release of the said property from attachment on the ground that prior to first order of attachment, the defendant had entered into agreement for sale, pursuant whereto three registered sale deeds were executed, two of which on 27-4-1974 and one on 7-9-1974 for a consideration of Rs. 47,000/-. The agreement for sale was 9-2- 1974 and 16-2-1974. Neither in the Court below nor in this Court, the correctness or validity of the two agreements for sale has been challenged. The two agreements for sale were exhibited in Miscellaneous Case as Exhibits 2 and 2/a respectively. The trial Court held that the sales effected subsequent to order of attachment were private sales in terms of Section 64, C. P. C. They would be void as against the attachment and thus the subsequent Court sales were valid and could not vitiate. This Court, prima facie, in the first round of the litigation held to the contrary but gave no conclusive findings. When the matter was heard, the Apex Court pointed out that the Apex Court had given its view in the matter which was consistent with the views of this Court but as this Court has not decided, remanded for final decision on that issue. It is on these facts and circumstances, the matter is now before this Court for final disposal. The fact may be re-stated for clarity. The two agreements for sale were executed on 9-2-1974 and 16-2-1974. After these two agreements for sale were made, the original attachment order was issued on 27- 3-1974. In respect of these two agreements for sale, registered sale deeds were executed on 27-4-1974. In respect of land of the third, petitioned before this Court, the sale deed was registered on 7-9-1974, which was admittedly prior to the attachment by Sub- Judge, Jehanabad, which attachment was ordered on 25-6-1976. The sub-Judge, Jehanabad ultimately auction sold the land on 19-11-1977 on which day the present petitioners had filed miscellaneous case for releasing of their lands, which application was ultimately rejected giving rise to the present civil revision.

(6.) On these facts,, it is submitted that the agreement being prior to attachment, the subsequent sales have been given effect to.

(7.) The first proviso I would like to refer is O. XXXVIII, Rule 10, C. P. C. :

"10. Attachment before judgment not to affect rights of strangers nor bar decree holder from applying for sale - Attachment before judgment shall not affect the rights, existing prior to the attachment, 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.) A reference to the said rule would show that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit. Here, the agreements to sale having been executed prior to attachment, a right was created in these petitioners in whose favour agreements were for enforcing the agreement and getting it sale deed executed. This right by virtue of Rule 10 of Order XXXVIII is saved as to prevail over the attachment. If that be so, then it follows that sale made pursuant to the agreement aforesaid must also survive the attachment and subsequent Court sale of attached property would be contrary to pre existing right and would be contrary to Order XXXVIII, Rule 10 and thus, invalid. In my view, this Court has now been decided by the Apex Court, as noticed earlier in the case of Vannarakkal Kallalathil Sreedharan- v. Chandramaath Balkrishan and another since reported in (1990) 3 SCC 291. There under similar facts, the Apex Court held that the rights of attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor. While doing so, their Lordships over ruled the decision of the Punjab and Haryana High Court and Lahore, High Court in that regard and approved the views taken by Madras High Court, Calcutta, High Court and the Bombay High Court. After this decision, the matter again came up before the Apex Court in the case of Hamda Ammal v. Avadiapp Pathar and 3 others since reported in (1991 (1) SCC 715). In that case before order of attachment was passed the judgment debtor had executed the sale deed. The sale deed was presented for registration and registered after attachment. The Apex Court again held that the sale deed having been executed prior to attachment and interest has been created in 3rd party prior to attachment and as such that right could not be over looked and those rights were protected under O. XXXVIII, R. 10, C. P. C. read together with Section 47 of the Registration Act. Their Lordships in the said judgment held that till registration, the execution of sale does not confer any right whatsoever on the vendee. At this stage also I may notice a relatively recent judgment of Andhra Pradesh High Court being the case of Adinarayana v. S. Gafoor Sab and others since reported in AIR 2004 AP 377. There also there was an agreement for sale of a house property much prior to attachment though the sale deeds have been executed and registered subsequent to order of attachment, their Lordships held that notwithstanding Section 64, C. P. C, such a sale was not void. Such a sale has to be given precedent over attachment by virtue of O. XXXVIII, R. 10, C. P. C. which provides the right of third party created prior to attachment. Thus, seen the sale has affected by the executing Court could not have been made ignoring the three sale deeds, in question, and having been so made, the Court sales to that extent, as covered by the three sale deeds, are void and enforceable. The impugned order passed by Sub-Judge, Jehanabad in Misc. Case No. 28/77, dated 18/8/1987 is set aside. The revision application is allowed. Revision allowed