Skip to content


Naranappier Vs. Chidamabaram Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1933Mad96; 140Ind.Cas.600; (1932)63MLJ945
AppellantNaranappier
RespondentChidamabaram Pillai and ors.
Excerpt:
- - he is interested in the property fetching as high a price as possible, being the person entitled to any surplus remaining over, after the decree is satisfied......which we are not concerned. thus, in regard to lot 3, he claims that he has a right to apply under rule 90, by reason of his purchase, which admittedly was made subsequent to the attachment. in regard to lot 5, the right he claims is a different one with which it is unnecessary to deal, in the view we have taken to which i shall refer presently.2. the point of law argued is this: is a person to whom the judgment-debtor transfers the property subsequent to its attachment entitled under rule 90 to apply to set aside the court sale? that is to say, is he or is he not a person 'whose interests are affected by the sale'? the answer is obvious, that the court sale affects his interests; he is interested in the property fetching as high a price as possible, being the person entitled to any.....
Judgment:

Venkatasubba Rao, J.

1. The Lower Court has made an order setting aside the sale of certain items under Order 21, Rule 90, and the appellant complains against that order. The point of law raised is, that the petitioner before the Lower Court has no locus standi under the rule in Question; in other words, that he is not a person ' whose interests 'are affected by the sale'. The property was sold in parcels and the decree-holder (the appellant before us) purchased lots 3 and 5 ; another, a stranger, purchased lots , 2, 4 and 6 and he has not appealed against the part of the order affecting him. The decree-holder alone has thus preferred this appeal and we are therefore concerned with the sale of only lots 3 and 5. The position of the applicant before the Lower Court (to whom I shall refer as the respondent) is this. Subsequent to the attachment which preceded the sale, he purchased certain items in lot 3 and certain other items in lot 2 with which we are not concerned. Thus, in regard to lot 3, he claims that he has a right to apply under Rule 90, by reason of his purchase, which admittedly was made subsequent to the attachment. In regard to lot 5, the right he claims is a different one with which it is unnecessary to deal, in the view we have taken to which I shall refer presently.

2. The point of law argued is this: Is a person to whom the judgment-debtor transfers the property subsequent to its attachment entitled under Rule 90 to apply to set aside the Court sale? That is to say, is he or is he not a person 'whose interests are affected by the sale'? The answer is obvious, that the Court sale affects his interests; he is interested in the property fetching as high a price as possible, being the person entitled to any surplus remaining over, after the decree is satisfied. As a matter of fact, the respondent has acquired the entire interest of the judgment-debtor in the property and he is the person that suffers, if there be irregularity or fraud in connection with the Court sale. But Mr. T.M. Krishnaswami Aiyar for the appellant contends, that the sale to the respondent being subsequent to the attachment confers on him no right at all and that he has therefore no locus standi under Rule 90. This argument which is professed to be based upon Section 64, Civil Procedure Code, overlooks its plain effect. In the first place, what the provision renders void, is not every transfer, but a transfer contrary to the attachment. The words ' contrary to such attachment' were substituted in the present Code for words of much wider import ' during the continuance of the attachment ' in the Code of 1882. The expression in the old Code was too wide comprising as it did, alienations, that could not possibly prejudice the rights of an attaching creditor; but under the present section, the question to be considered is, is the transfer contrary to the attachment? When its effect is not to defeat the attachment but is, on the other hand, subject to it, it cannot possibly be held to offend against the section. Secondly, the section does not provide that the transfer shall be void absolutely or without limitation but only ' as against all claims enforceable under the attachment'. That means, that the purchaser is subject to the same liabilities as the judgment-debtor was and that by reason of the transfer he does not get any higher rights. The transfer is, subject to the claims under the attachment, but surely to commit an irregularity or a fraud in the conduct of the sale, is not such a claim. I have not the slightest hesitation in holding that, so far as lot 3 is concerned, the respondent has made out his right.

3. Then arises the question of fact, namely, was there material irregularity or fraud in regard to the sale of item 3 by reason of which the applicant has sustained substantial injury?

4. [His Lordship discussed the evidence and held that lot 5 but not lot 3 had been sold for a grossly inadequate price.]

5. In the result, the appeal is dismissed as to lot 3 and allowed in respect of lot 5. The appellant and the 1st respondent here shall pay and receive proportionate costs throughout. In regard to lots 1, 2, 4 and 6 there is, as we have said, no appeal and the Lower Court's decision consequently stands.

Reilly, J.

6. I agree. I do not think there can be any doubt that the Petitioner before the Subordinate Judge, Chidambaram Pillai, was a person whose interests were affected by the sale within the meaning of Rule 90 of Order 21 of the Code of Civil Procedure. It is not now disputed that, after the attachment obtained by the Appellant before us, Naranappaier, in execution of his decree but befors the sale with 'which this case is concerned, Chidambaram Pillai bought several items in lot 3. What he bought in that way he bought subject to Naranappaier's attachment. But that does not mean that his purchase was illegal or illusory. He bought in effect the surplus over any value which might be obtained by Naranappaier in execution under his attachment. Mr. T.M. Krishnaswami Aiyar suggested that, even if Chidambaram Pillai was a person whose interests, were affected by the sale within the meaning of Rule 90 of Order 21, nevertheless Section 64 of the Code prevented him from attacking the sale in execution. J3ut what Section 64 of the Code lays down, as my learned brother has pointed out, is that such a purchase as that of Chidambaram Pillai is void as against any claim enforceable under the attachment. That I understand to, mean that his purchase cannot defeat or affect Naranappaier's right as attaching decree-holder to satisfy his decree out of the property attached. But I see no reason why that provision should shut out Chidambaram Pillai from any right as a person interested to show to the Court that by reason of some fraud or irregularity substantial loss had been caused to him by the property being sold in execution for less than its market-value.

7. That the price obtained in execution in this case for lot 3 and the other land which was sold in execution was much less than its market-value is, I agree with my learned brother, amply made out by the evidence in the case.

[His Lordship proceeded to deal with the evidence and concluded :]

9. In my opinion the finding that there was both fraud and irregularity, which resulted in substantial loss in respect of lot 3, cannot properly be upset by us and must be accepted.

10. In regard to lot 5 I agree with my learned brother that the evidence that the house comprised in that lot was really worth a great deal more than what was obtained for it at the auction-sale is not very satisfactory. The evidence is conflicting, and curiously enough it was not tested by cross-examination on either side. The learned Subordinate Judge, although he appears to have accepted the Petitioner's case in regard to the house, does not discuss that evidence in detail and does not give us any sufficient reason why he should believe the evidence of one side or the other. I agree with my learned brother that in the circumstances the evidence does not appear to be of sufficient value to justify the finding that substantial' loss was caused in regard to lot 5, and therefore I agree that the appeal should be allowed in respect of that lot.

11. I agree also to the order proposed as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //