Swatanter Kumar, J.
1. This appeal is directed against the order dated 27.2.1996 passed by the learned Additional District Judge, Faridkot. Vide the said order the learned executing Court dismissed the objections filed by one Shri Avtar Singh under Order 21 Rule 58 of the Code of Civil Procedure.
2. The necessary facts are that an amount of Rs. 1,92,000/- with interest was awarded in favour of Gurjeet Kaur and against Saudagar Singh and another on 20.8.1990. Against this order Gurdip Kaur has preferred an appeal for enhancement of the amount awarded. On or about 24.10.1991 Gurdip Kaur filed an execution in the Court of competent jurisdiction. During the pendency of these objections an application was filed on 7.8.1993 for attachment of immovable property belonging to judgment-debtors comprised in Khewat No. 120, Khatauni No. 334, 338 and 339, situated in village Malakpur.
3. The objector Avtar Singh Claims that he came to know of the attachment of this property from one relative of Smt. Gurjeet Kaur and without any delay filed the present objections. The objections have been preferred on the basis that Saudagar Singh and others had entered into an agreement to sell dated 17.6.19921/3rd share of land measuring 13 Bighas 14 Biswas in the above mentioned Khewat Nos. Thus the contention was that there was an agreement to sell of the land in question in favour of the objector prior to the order of attachment issued by the Court in August, 1993. As such this would not effect the rights of the objector. It is further claimed by the objector that he had filed a suit against Himmat Singh and others for specific performance titled as Avtar Singh v. Himmat Singh and Ors. which was pending in the Court of Additional Senior Sub Judge, Malerkotla. That Court had even passed an injunction order restraining the defendants from transferring the property on 16.3.1995. On these allegations the objector prayed that order of attachment would not effect his rights arising from the agreement to sell. The decree-holders had alleged that the entire transaction is sham and is mere attempt to delay the proceedings and satisfaction of the decree in the execution proceedings. However, these objections have been dismissed by the trial Court vide the impugned order.
4. Under Order 21 Rule 58 of the Code, an executing Court is under obligation to determine the objections raised by the objector that the property was not liable to the attachment order passed by the Court. Further the Court has been empowered to decide all questions relating to right, title or interest in the attached property which may arise between the parties as a result of such objections. An implicit bar is provided under Order 21 Rule 58 of the Code that all such questions would be determined by the executing Court and they would not be subject matter of an independent suit.
5. It is a settled principle of law that the Court while determining the rights of the parties under this provision can record evidence if it considers proper. Seriously disputed questions of fact specially where they relate to Court records purchase of stamp papers or a plea of fraud should and ought to be normally determined after giving an opportunity to the parties to lead evidence. Under proviso to Rule 58 of the Code an exception is carved out to say that in what cases the Court can decline to entertain such objections. This proviso, thus, has to be enforced only in the limited cases which falls strictly within the ambit and scope of the proviso. No doubt the scope of enquiry under this provision is a narrower one but certainly it is enough to properly adjudicate the claim of an objector whose rights had accrued in the property prior to the passing of the order of attachment. Amendment of this provisions by the Amended Act, 1976 has been enlarged and is not to be governed with the earlier limited scope granted to the executing Court by previous pronouncements. The attachment, and determination of respective rights in execution must be treated and actually dealt as an investigation of a wider meaning and consequence. The Madras High Court in the case of Southern Stemet v. B.M. Steel, A.I.R. 1978 Madras 270, held as under :-
'.. The adjudication under present Order XXI, Rule 58, C.P.C. is no longer summary and it is the intention of the Legislature that it should be a decision as if rendered in a regular suit resulting in an appealable decree. Fuller examination of the rights of the parties has to be made after giving them adequate opportunity to place all relevant materials before the Court.'
Other High Courts have also expressed similar views.
6. The Learned trial Court has made some observations in the impugned order without any detailed discussion on the subject that agreement to sell is a collusive one and the agreement was entered into only to delay an defeat the execution of the decree. This finding of the learned trial Court is without any basis and in fact is without affording any opportunity to the objector to satisfy the Court in this behalf. The objector as already noticed, was not given any chance to lead evidence. The objector who has filed an application with due explanation, as even noticed by the trial Court, in the present case, was entitled to a proper opportunity. The said objector had a right to explain and satisfy the Court that the delay was not by design and he had approached the Court without any inordinate delay. Reference in this regard is made to Mr. M. Ramachandra Rao v. A. Pappayya Sastry, A.I.R. 1974 A.P. 28.
7. Normally such claim or objections which are designed malafidely and are intended to unnecessarily delay the execution proceedings and are filed with an intended of unnecessary delay, the Court can decline to entertain such a petition and grant the objector benefit of entertainment of such an attachment. In this regard reference can be made to the observations of the Supreme Court in the case of Hindustan Commercial Bank v. Punna Sahu, A.I.R. 1970 Supreme Court 1384.
8. In the present case it is nowhere noticed by the trial Court as to from what facts and circumstances the executing Court has inferred these essential ingredients for compelling the Court to resort to proviso to Sub-rule (1) of Rule 58 of Order 21 of the Code. The application for attachment of the immovable property to the extent of l/3rd share of Himmat Singh was filed by the decree-holder only on 7.8.1993 itself though the execution was pending since 1991. As is clear from the record the warrant of attachment was not executed till 16.4.1994 on which date the warrants were stated to have been executed. Thereafter notice under Order 21 Rule 66 of the Code was issued for settlement of proclamation and auction was fixed for 25.3.1993 and the objections by the objector were filed on 8.4.1993 after having come to know of the attachment. The property was never sold in furtherance to the attachment and the objector was already prosecuting the suit filed by him for specific performance. In these circumstances it is difficult to hold and that too without affording proper opportunity to the objector that the objections were delayed ones and intended to delay the proceedings.
9. The learned trial Court also did not dismiss the objections as not entertainable in accordance with the provisions to order 21 Rule 58(1) of the Code but kept the said objections pending till 27.2.1996 when they were dismissed with the above observations. This view of the learned trial Court is neither just nor proper in view of the settled principles of law and inadequate reasoning given in the order. These proceedings in the given facts and circumstances of the case amount to substitution of the suit proceedings and where question of title and interest is involved, the proceedings have to be somewhat similar to that of the suit and cannot be permitted to be limited and somewhere proceedings in the nature of the proceedings adopted by the trial Court.
10. Under Section 64 of the Code it is the transfer of alienation of the property or interest thereof which is subsequent to the order of attachment, are the ones which are vitiated. It will be relevant at this stage to refer to Section 64 of the Code as under:-
'64. 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 monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Explanation-For the purposes of this section, claims endorsable under an attachment include claims for the rateable distribution of assets.'
The very opening language of the Section shows that what transactions are rendered void are the ones which are post-order of attachment and not pre-attachment orders. Normally it is private transfer only or delivery of the property which is rendered void. An agreement to sell in law does not pass a title in the property but an agreement to sell and an agreement to lease does create an interest in the property. It is not the magnitude of the interest which is under consideration under Section 64 of the Act, but it is any interest in the property which if created prior to the order of attachment would not vitiate such private transaction. In other words what is material is the point of time when the transaction is entered into and not the nature of the transaction alone which would determine the fate of such transaction within the meaning of Section 64 of the Code. A Court has to come to a positive finding that whether such a private transaction is a sham one or has been entered into during the period post-order of attachment but has been ante-dated for a period pre-order of attachment. Mere contention of a party may not be sufficient to come to such a finding but there should be reasonable and some cogent evidence before the Court to come to such a conclusion. The two essential factors which must co-exist to render a private transfer invalid or void are order of attachment and there after private transaction of transfer or agreement to deliver the property. This is further clear from the fact that a transfer within the meaning of Section 64 of the Code renders such transaction void against such order of attachment and no other. Reference can be made to Moti Lal v. R.T. Patil, A.I.R. 1974 Bombay 261. The scope of Section 64 of the Code is limited in its operation and conclusion of the executing Court for dismissing objections as already discussed, has to be well reasoned and well founded. Such an order cannot be permitted to be based on surmises and conjectures. Mere averments without even an iota of evidence on record would render such an order for interference.
11. Hon'ble the Supreme Court in the case of Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and Anr., (1990-1) 97 P.L.R. 623 (S.C.), while discussing the scope of Section 64 of the Act and considering somewhat similar situation, specifically over-ruled the view taken by this Court in the case of Mohinder Singh and Anr. v. Nanak Singh,(1971) 73 P.L.R. 257, and held as under:-
'Hence, if under a contract of sale entered into before attachment, the conveyance after attachment in pursuance of the contract passes on good title inspite of the attachment. To the same effect are the decisions of the Bombay High Court in Rango Ramachandra v. Gurlinquappa Chinappa, A.I.R. 1941 Bom. 198 and Yashvant Shankar Dunakhe v. Prayarji Nurji Tamboli, A.I.R. 1943 Bom. 145. The High Court of Travancore-Cochin in Kochuponchi Varughese v. Ouseph Lonan, A.I.R. 1952 Tran. Cochin 467, has also adopted the same reasoning.'
'In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore Cochine in the aforesaid cases appears to be reasonable and could be accepted as correct. The agreement for sale indeed creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor the attachment cannot be free from the obligations incurred under the contract for sale. Section 64 CPC no doubt was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor shall not be allowed to over-ride 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 sales as if it remained with the view taken by the Punjab and Haryana High Court in Mohinder Singh's case (AIR 1971 P.and Haryana 381).'
In view of the clear law laid down by the Hon'ble Supreme Court of India the order of the learned executing Court is not sustainable in law. There was a specific pleading that the agreement to sell upon receipt of part consideration was prior to the order of attachment. As such the transaction would not be rendered void unless the Court comes to such a conclusion that the alleged agreement was ante-dated and the objections were a mere fraud upon the process of law.
In view of the above discussion, this petition is allowed. The order of the executing Court dated 27.2.1996 is hereby set aside. The matter is remanded to the learned Executing Court to decide the objections of the objector in accordance with law. The parties are directed to appear before the executing Court on 23.9.1996. There shall be no orders as to costs.