K.D. Sharma, J.
1. This is a Civil Second Appeal preferred by Bhalle Chand and Ukh Chand against the judgment and decree passed in appeal by the Civil Judge, Jalore, on December 5, 1967, by which the judgment and decree of the Munsiff, Jalore, dismissing the suit of the appellants under Order XXI Rule 63, CPC was upheld and maintained.
2. The brief facts giving rise to this second appeal may be briefly stated as follows : Tej Raj and Babu Lal plaintiff-respondents obtained a money decree against Kojiya and Moda respondents Nos. 3 and 4 for Rs. 1681/-, with costs, pendente lite and future interest from the court of the Munsiff, Jalore, and in execution of the decree got attached one house, i.e. 'Nohra' situated at village Balwara The appellants and Sardar Mal preferred a claim in respect of this 'Nohra' under Order XXI Rule 58, CPC on the ground that this 'Nohra' belonged to ownership and possession at the time of attachment Their claim was dismissed by the court of the execution on August 19, 1964, on the ground that it was unnecessarily delayed Aggrieved by this order, the defeated claimants i.e. the appellants and Sardar Mal filed a suit under Order XXI Rule 63, CPC to establish their title to the 'Nohra' in dispute by obtaining a declaratory decree against the respondents, In the suit filed by the defeated claimants, it was alleged that the 'Nohra' under attachment was purchased by way of a registered sale deed from its owner Kojiya, judgment-debtor, for Rs. 400/-, on April 19, 1963, and since then the defeated claimants have been in continuous possession thereof as owners. Tej Raj and Babu Lal, respondents, hotly contested the suit filed by the defeated claimants on several grounds which are mentioned in their written-statement The main ground on which the suit was resisted was that the alleged sale of 'Noh a' in favour of the defeated claimants was made by Kojiya, judgment debtor, after the property was attached and therefore, the sale was void. In the alternative, it was further pleaded that the sale was an outcome of collusion between the defeated claimants and Kojiya, judgment-debtor, who fraudulently sold away the 'Nohra' to the appellants and Sardar, Mai with intent to defeat or delay his creditors, i.e. Tej Raj and Babulal, respondents.
3. Upon pleadings of the parties, the learned Munsiff framed as many as following four issues in the case:
1. Whether the house under attachment was in possession of the plaintiffs and they were its owners?
2. Whether the sale of the house under attachment has been effected after the attachment and, as such, was inoperative and void?
3. Whether the sale of the house under attachment was fraudulent? If so. its effect?
4. What would be the relief?
and recorded the evidence of the parties on them The learned Munsiff then considered the entire evidence oral as well as documentary on the record and decided issues Nos. 1 and 3 in favour of the respondents' Nos. 1 and 2 white issue No. 2 was decided by him against the plaintiff-appellants Accordingly, the learned Munsiff dismissed the suit of the appellants and Sardar Mal, proforma respondent, but left the parties to bear their own costs. Aggrieved by this judgment and decree, the appellants and Sardar Mal filed an appeal in the court of the Civil and Additional Sessions Judge, Jalore. The learned Civil Judge after hearing the parties, upheld the judgment and decree of the learned Munsiff and dismissed the appeal leaving the parties to bear their own costs throughout. As against the judgment and decree of the Civil Judge, the defeated claimants have come up to this Court in Secord. Appeal During the pendency of the appeal, Bhalle Chand died and his legal representatives Smt. Choga Bai, Okh Chand & Smt. Mohan Bai were brought on the record is appellants.
4. I have carefully perused the record and hear Mr. S.N. Vyas. learned Counsel for the appellants and Mr. Jaswant Mal Bhandari, appearing on behalf of the respondents It has been contended on behalf of the appellants that both the courts below committed an error of law in dismissing the suit of the appellants although the appellants adduced satisfactory evidence to establish their title to the 'Nohra under attachment. It was further urged by Mr. S.N. Vyas, learned Counsel for the appellants, that the sale made by Kojiya judgment-debtor in favour of the appellants by way of registered sale-deed dated April 19, was neither void? nor collusive or fraudulent, button the other hand, the appellants were transferees in good faith and for consideration and so their right or title to the 'Nohra' could not be impaired by its attachment merely because Kojiya judgment-debtor gave preference to one of his creditors, i.e. the appellants to the exclusion of his other creditors, namely, Tej Raj and Babu Lal.
5. Mr. Jaswant Mal Bhandari, on the other hand, argued that Kojiya, judgment debtor, with the purpose of defeating or delaying his creditors, namely Tej Raj and Bibu lal, respondents converted his Nobra' into money and his object was known to the purchasers appellants who aided and assisted the judgment-debtor in carrying out his said purpose by getting a sale-deed executed by him after the property was attached by the Amin Shri Mool Raj in execution of the decree obtained against him by the respondents Hence, according to him, the title of the appellants is worthless as against Tej Raj and Babulal, respondents.
6. I have given my best consideration to the rival contentions. It may be observed at the outset that in the present case a copy of the proclamation order issued under Order XXI, Rule 54, old CPC was not affixed on a Conspicuous part of the court house till April 20/1963, as rightly held by both the courts below. It was ho doubt affixed on a conspicuous part of the Nohra' sought to be attached and was pre claimed by beat of document the place or adjacent to the 'Nohra' but the omission to affix a copy of the sale proclamation on a conspicuous part of the court house was a material irregularity and the attachment of the 'Nohra' was not complete till April 20, 1963, on which date a copy of the proclamation order was affixed on a conspicuous part of the court house. 'In this view of the matter, the transfer of the 'Nohra' made by the judgment-debtor in favour of the appellants on April 19, 1963, was not void Reference in this connection may be made to an authority of this Court Ramnath v. Babulal 1956 RLW 92, where it was held that no valid attachment of the property is made unless all the processes of the attachment specified in Order XXI, Rule 54 CPC hive been served.
7. The next question that requires determination in this appeal is whether Kojiya judgment-debtor transferred the 'Nohra' by way of registered sale-deed in favour of the appellants with the purpose of cheating his creditors namely, Tej Raj and Babu Lal, respondents, and fraudulently converted the 'Nohra' into money so as to render it incapable to satisfy the debts due to him, In this connection. I may observe that under Section 53 of the Transfer of Property Act the respondents could avoid a fraudulent transfer to Kojiya debtor by way of defence to a suit brought by the transferees to establish their title. In the instant case, the respondents have succeeded if proving that the 'Nohra' was transferred by Kojiya judgment-debtor to the appellants on the very day on which it was attached by Mool Raj Amin, Mool Raj elearly, stated in his deposition that on April 18, 1963, he went to village Balwara for making an attachment of the 'Nohra' in execution of a decree obtained by Tej Raj and Babu Lal, respondents, against Kojiya, judgment-debtor. He further Sated that the very day at about 12.30 p.m. he affixed a copy of the proclamation order under Order XXI, Rule 54 CPC on a conspicuous part of the 'Nahra' in the presence of Motbirs and there proceeded to affix a copy of the proclamation order on a conspicuous place at the 'Chopal' of the village and then met Bhalle Chaud, deceased appellant in the way who asked the former as to where he was going. Thereupon; Mool Raj replied that he had attached the 'Nbhra' by affixing a dopy of the proclamation order on its conspicuous part & was going to affix another Copy of the proclamation order on a conspicuous part of the 'Chopal' of the village. At that time Mool Raj was accompanied by Tej Raj decree holder, and the Motbirs. The Evidence of Mool Raj finds corroboration from the statement of Tej Raj, respondent who further stated that Bhalle Chand deceased, did not raise any objection to the attachment of the 'Nohra' when he was informed by Mool Raj to the 'Nohra' had been attached. Both the Courts below have relied upon the testimony of Tej Raj and Mool Raj and after going through their statements, I find no reason to disbelieve them especially when nothing has been elicited from their cross examination which may destroy the value of their testimony pr to impeach their credit. From their evidence it is fully established that Bhalle Chand, deceased appellant, had come to know that the 'Nohra' had been attached by Mool Raj Amin on April 18, 1963. Depite this knowledge, it appears from the the record that he along with Kojiya judgment debtor rushed to Jalore and got the sale-deed of the 'Nohra' executed the very day in his favour and in favour of his son Ukchand. The action of Kojiya judgment-debtor, on the date of the transfer, i.e. April 18, 1963, was intended to defeat or delay his creditors, i.e. namely. Tejraj and Babulal, respondents, because be had no other property to meet the claim of the respondents except the 'Nohra' which he had transferred. Section 53 of the Transfer of Property Act rd doubt affords protection to a bonafide purchaser for valuable consideration but in the present case Bhalle Chand deceased and his two sons purchased the 'Nohra' with the knowledge of the transferor's fraudulent intention. It is no doubt the that the mere knowledge of Bhallechand deceased that the execution was pending against Kojiya does not necessarily make the transfer Invalid but as, I have stated earlier, he shared the intention of Kajia to defeat or delay his creditors, namely, Tej Raj and Babu Lal and so Bhalle Chand transferee could not be said to have purchased the 'Nohra' in good faith.
8. There is another circumstance which leads to an inference that the transfer of 'Nohra' made by Kojiya, judgment-debtors, was fraudulent. The circumstance is that Kojiya judgment-debtor retained balance of a sum of Rs. 250/-, for himself cot of the consideration for the said of the 'Nohra'. Only a sum of Rs. 150/- Was said to have been adjusted against the debt which he owed to the purchasers at the time of the sale and the retention of the rest of the amount of Rs. 250/-, by Kojiya for his own benefit indicated his intention, to defeat or delay other creditors, namely, Tej Raj arid Babu Lal, especially when he had no other property left with him after transferring the 'Nbhra'. The contention of the counsel for the appellants that Kojiya could make preference amongst his creditors add could pay one creditor, i.e. Bhalle Chand deceased, in full leaving Tej Raj and Babu Lal, respondents, unpaid is, therefore, not well-founded, because Kojiya retained a benefit for himself out of the sale proceeds. From a carefully review of the entire evidence on the recode, if concur with the view of both the courts below that the sale was fraudulent find the appellants could not succeed in proving that their father Bhalle Chand was not a party to the design of Kojiya transferor & he did not share Kojiya's intention to defeat and delay His creditors Tej Raj and Babu Lal.
9. Hence, this second appeal filed by the appellants has no force and is hereby dismissed. In the circumstanced of the case the parties are left to bear their own costs throughout.