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Raja Ram Vs. Girraj Kishore and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1230 of 1956
Judge
Reported inAIR1964All369
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 54(3); Registration Act, 1908 - Sections 47
AppellantRaja Ram
RespondentGirraj Kishore and anr.
Appellant AdvocateS.B.L. Gaur, Adv.
Respondent AdvocateBrijlal Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
property - execution - order 21 rule 54(3) of the code of civil procedure, 1908 - execution of sale deed before attachment - registration after attachment - held, not valid. - - sub-rule 3 of this rule, framed by this court, provides that the attachment order shall take effect against transferees who are not purchasers for value in good faith from the date on which the order is made. it was held that the plaintiff did not act in good faith in obtaining a transfer of the house......in favour of the plaintiff. subsequently, on may 18, 1952 pyare lal and deo kumari executed a sale deed conveying this house to the plaintiff for rs. 3,000/- the sale deed being registered on the next day. 3. the defendant girraj kishore pursuant to a claimagainst pyare lal, instituted a suit (no. 184 of 1952)against him and on may 19, 1952 obtained an order ofattachment before judgment whereby pyare lal was prohibited from transferring his interest in the house duringthe pendency of the suit. an objection was filed by theplaintiff under order 38, rule 8, c. p. c., but the objectionwas disallowed. accordingly, the plaintiff filed the present suit for a declaration that the house in suit, or atleast to the extent of the half portion belonging to deokumari, was not liable to.....
Judgment:

Pathak, J.

1. This is a plaintiffs appeal arising out of a suit for a declaration that a certain house was not liable to attachment and sale in execution of a decree. The appeal came on for bearing before our learned brother Takru, who being of the opinion that an important question of law arose in the case, referred it to a larger Bench.

2. In 1946 the house was sold by the plaintiff to Pyare Lal and Deo Kumari for a sum of Rs. 3,000/-, out of which Rs. 1,500/- only were actually paid and concerning the balance the purchasers executed a simple mortgage in respect of the house in favour of the plaintiff. Subsequently, on May 18, 1952 Pyare Lal and Deo Kumari executed a sale deed conveying this house to the plaintiff for Rs. 3,000/- the sale deed being registered on the next day.

3. The defendant Girraj Kishore pursuant to a claimagainst Pyare Lal, instituted a suit (No. 184 of 1952)against him and on May 19, 1952 obtained an order ofattachment before judgment whereby Pyare Lal was prohibited from transferring his interest in the house duringthe pendency of the suit. An objection was filed by theplaintiff under Order 38, Rule 8, C. P. C., but the objectionwas disallowed. Accordingly, the plaintiff filed the present suit for a declaration that the house in suit, or atleast to the extent of the half portion belonging to DeoKumari, was not liable to attachment and sale in execution of the decree obtained by Girraj Kishore.

4. The suit was contested by the first defendant, Girraj Kishore, who alleged that the sale was ineffective in law on the ground that the sale deed was executed and registered after attachment had been effected and because the sale had been entered into for the purpose of defrauding him. It was denied that Deo Kumari had any share in the house. Pyare Lal, the second defendant, admitted that he and Deo Kumari had sold the house to the plaintiff on May 18, 1952 and that the sale deed was registered the next day.

5. The trial Court decreed the suit for declaration in respect of the entire house, but upon appeal the learned Additional Civil Judge varied the decree so that the suit now stood decreed for a declaration in respect of the half share of Dev Kumari alone.

6. The lower appellate Court has found that the sale deed was executed on May 18, 1952, that the attachment was effected on May 19, 1952 at noon, and the sale deed was registered later on the same day between noon and 1 O'clock. It held that the sale had been effected in order to defeat and delay the claim of Girraj Kishore and therefore, even though it became effective from May 18, 1952, it was voidable at the option of that creditor.

7. There is no dispute that when the sale deed was executed on May 18, 1952 even though it was registereda day later, it would take effect from the date of execution. Section 47 of the Registration Act provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had teen required or made, and not from the time of its registration. Unless a sale deed is registered, the mare fact of its execution does not make it operative, but by reason of Section 47 once registration has been affected the sale deed becomes operative retrospectively from the date of execution.

8. Order 21, Rule 54 of the Code, however, declares that where the property is immovable property the attachment shall be 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. Sub-rule 3 of this Rule, framed by this Court, provides that the attachment order shall take effect against transferees who are not purchasers for value in good faith from the date on which the order is made. The lower appellate Court has found that the sale deed was executed by Pyare Lal in favour of the plaintiff in order to defeat and delay the claim of Girraj Kishore. It was held that the plaintiff did not act in good faith in obtaining a transfer of the house. That being so, the attachment order takes effect at noon on May 18, 1952 when the order was made. The effect of the attachment order was that no person, including the plaintiff, could take any benefit from the transfer sought to be effected by Pyare Lal. There can be no doubt that the right to have the sale deed registered is a benefit which belongs to the purchaser consequent upon the execution of the sale deed. This benefit could not in law be availed of by the plaintiff after the attachment order had been made. Any act done by him after the attachment order for the purpose of giving effect to the transfer sought to be made by Pyare Lal must be held to be ineffective in law. The sale deed could not be operative unless it was registered, and the right to have it registered was a right denied to the parties to the sale by reason of the attachment in the circumstances, we are of opinion that the sale deed never became operative so far as the transfer intended by Pyare Lal in favour of the plaintiff is concerned.

9. Learned counsel for the appellant has also contended that the provisions of Section 53 of the Transfer of Property Act, upon which reliance was placed by the lower appellate Court, do not apply inasmuch as what is contemplated by that provision is a transfer of immoveable property made with intention to defeat or delay the general body of creditors, whereas the present is a case where a transfer was made in favour of one of the creditors, and merely amounted to a preference of one creditor over the others. It is not necessary to consider this submission in view of our finding that the sale by Pyare Lal never became operative at all.

10. The appeal, therefore fails and is accordingly dismissed with costs.


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