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Dhan Singh and anr. Vs. Baboo Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 39 of 1975
Judge
Reported inAIR1981All1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 64 and 100 - Order 21, Rule 63 - Order 38, Rule 9
AppellantDhan Singh and anr.
RespondentBaboo Ram and ors.
Appellant AdvocateS. Alim Shah, Adv.
Respondent AdvocateSudhir Narain Agarwal, Adv.
DispositionAppeal dismissed
Excerpt:
property - recovery - section 64 order 38 rule 9 and section 100 order 21 rule 63 of code of civil procedure, 1908 - suit by creditor for recovery of money - debtors property attached by court before judgment - property sold by debtor during the pendency of attachment - sale of property attached by court before judgment is invalid -liability of appellants to pay decreetal amount - not raised before executing court - no permission to appellants to raise this question first time in second appeal. - - ' 6. it clearly provides that after an attachment is made if any transfer has been effected the said transfer would be void as against all claims enforceable under the attachment. this preposition is, therefore, now well settled.s.d. agarwal, j.1. this is a plaintiffs' second appeal arising out of a suit filed by the plaintiff appellant under order 21, rule 63 of the civil p. c. mukat lal and ram chander respondents nos. 2 and 3 filed two suits nos. 60 of 1968 and 140 of 1968 in the court of the second munsif, bulandshahr for recovery of an amount against baboo ram, respondent. after filing the suit the said respondents nos. 2 and 3 moved an application for attachment before judgment of the property of baboo ram. the court directed attachment before judgment of the properties including plot no. 555 area 3 bighas 10 biswas and 13 biswansis. suit no. 148 (140) of 1968 was dismissed by the trial court. an appeal was filed against the said judgment. in appeal the parties compromised and a compromise decree wag.....
Judgment:

S.D. Agarwal, J.

1. This is a plaintiffs' second appeal arising out of a suit filed by the plaintiff appellant under Order 21, Rule 63 of the Civil P. C. Mukat Lal and Ram Chander respondents Nos. 2 and 3 filed two suits Nos. 60 of 1968 and 140 of 1968 in the court of the second Munsif, Bulandshahr for recovery of an amount against Baboo Ram, respondent. After filing the suit the said respondents Nos. 2 and 3 moved an application for attachment before judgment of the property of Baboo Ram. The court directed attachment before judgment of the properties including plot No. 555 area 3 bighas 10 biswas and 13 biswansis. Suit No. 148 (140) of 1968 was dismissed by the trial court. An appeal was filed against the said judgment. In appeal the parties compromised and a compromise decree wag passed. The attachment before judgment took place on 12th March, 1968. On 1st July, 1968 Baboo Ram executed a sale deed in favour of the appellants. Suit No. 148 (140) of 1969 was dismissed by the trial court on 15th May, 1969. After the compromise decree in favour of respondents Nos. 2 and 3 they sought execution of the decree against the property sold in favour of the appellants. An objection was filed by the appellants to the effect that the suit having been dismissed the attachment before judgment automatically came to an end and as such the property which had been transferred in favour of the appellants could not be proceeded against in execution of the decree against Baboo Ram. Those objections were dismissed and hence the present suit was filed. It was further alleged in this suit that the proceedings of compromise were null and void as they were collusive,

2. Respondent No. 1 did not contest the suit but the suit was contested by respondents Nos. 2 and 3. It was alleged in defence that there was no collusion, the suits were rightly decreed and that the attachment was valid in law and as such they could proceed against the property.

3. The trial court found that the decrees were not collusive, the attachment was made according to law and the plaintiffs appellants were not entitled to any interest nor were they in possession over the disputed property hence the suit was dismissed on 21st March, 1973. Against the said judgment an appeal was filed before the lower appellate court. The lower appellate court also dismissed the appeal on 25th November, 1974. Against the said judgment the present second appeal has been filed in this Court. The lower appellate court agreed with the findings recorded by the trial court that the proceedings of compromise were not collusive and that the attachment before judgment was also valid in law. It was further found that the plaintiffs appellants were not in possession of the property on the date when the agreement of sale was said to have been executed. In fact the finding of the lower appellate court is that there was no prior agreement of sale and the case set up by the plaintiffs appellants was absolutely false.

4. Learned counsel for the appellant before me has raised two contentions. The first contention raised by him is that once the suit was dismissed by the trial court on 15th May, 1969 the attachment before judgment automatically came to an end and as such the sale deed in favour of the appellants cannot be held to be void. The second contention raised by the learned counsel is that even if the attachment made in favour of the respondent is held to be valid then too the entire suit could not have been dismissed and that the respondents were only entitled to the decretal amount in respect of suit No. 60 of 1968.

5. Section 64 of the Civil P. C. is as follows:

'Private alienation of property after attachment to be void. -- 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.

Explanation.-- For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.'

6. It clearly provides that after an attachment is made if any transfer has been effected the said transfer would be void as against all claims enforceable under the attachment. The other relevant provision in this connection is Order 38, Rule 9 of the Civil P. C, which provides as follows :

'Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required together with security for the costs of the attachment or when the suit is dismissed.'

7. In view of these provisions it was argued by the learned counsel for the appellants that once the suit was dismissed the attachment before judgment automatically came to an end it was not revived even if the decree is reversed in appeal. Learned counsel has further sought reliance on a Full Bench decision of this court reported in Abdul Hamid v. Karim Bux : AIR1973All67 . In the case of Abdul Hamid (supra) the Full Bench of this court has held that on the dismissal of the suit in default the attachment before iudgment automatically ceases and does not revive on the restoration of the suit. This preposition is, therefore, now well settled.

8. The question, however, which further arises in this case is whether a sale made after attachment before judgment and before the dismissal of the suit is valid or not. This would depend upon the decision of the question as to when a suit is dismissed the attachment before judgment becomes void ab initio or from the date the suit is dismissed. There is no direct decision on this question. Learned counsel for the appellants has, however, placed reliance on certain observations made in Dular Singh v. Ram Chander : AIR1934All165 by a learned single judge of this court which are as follows:

'As already explained the attachment before Judgment ceases and then it is no longer open to the plaintiff to say that he is enforcing a claim under that attachment because the order of dismissal of his suit has been upset by the appellate Court.

I may remark that the only effect of the attachment before judgment is to prevent the Judgment-debtor from making a transfer of the attached property during the continuance of the attachment so that the benefit of attachment may be available to him when he seeks to enforce his decree which might subsequently be passed. The order of attachment does not create a charge in his favour and therefore, as soon as the attachment ceases the plaintiff loses all rights to enforce any claim under it.'

9. The observation made in the case of Dular Singh does not in my opinion assist the appellant. In the case of Dular Singh it has not been considered as to what would be the position in a case where sale has been made when the attachment before judgment was in existence. If after the dismissal of the suit any transfer is made obviously the plaintiff cannot enforce his claim against a transfer made after the attachment ceases.

10. Section 64 of the Civil P. C. specifically provides that where an attachment has been made any private alienation of property after attachment would be void. In view of this provision, any private sale of the property which has been attached before the judgment would be void. O, 38, Rule 9 empowers the court to order withdrawal of the attachment of the judgment in a case where a suit is dismissed. This rule does not either expressly or impliedly suggest that the attachment before the judgment would become void ab initio when a suit is dismissed. An attachment before judgment would, however, cease to have effect when a suit is dismissed. The validity of the attachment before the judgment, however, during the period when it was issued and till the date of dismissal of the suit is not, however, affected by Order 38, Rule 9 of Civil P. C. on which reliance has been placed.

11. On an interpretation of both the provisions mentioned above, I am of the opinion, that an attachment before the judgment would remain valid till the date of dismissal of the suit but would cease to have effect after the date when the suit is dismissed. Since the attachment before the judgment is valid prior to the dismissal of the suit, any transfer made in contravention of the order of attachment before the judgment would, therefore, be void. In the circumstances, the sale in favour of the appellant which was made during the pendency of the attachment of the judgment cannot be held to be valid. In the circumstances, the first submission made by the learned counsel does not have any substance.

12. In regard to the second submission, the present suit was filed for a declaration as to whether the property in dispute was liable for attachment and sale in execution of the decrees passed in suits Nos. 60 of 1968 and 148 (140) of 1968. The further question as to whether the appellants are only liable to pay the decretal amount was not the subject matter of dispute in the present suit. That is a question which the appellants if at all should have raised before the executing court. In the circumstances the second question raised for the first time in second appeal cannot be permitted to be raised by the appellants.

13. In the result, I do not find any force in this appeal. It is accordingly dismissed but in the circumstances of the case parties are directed to bear their own costs.


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