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Veerappa thevar and ors. Vs. C.S. Venkatrama Ayyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1935Mad872; 158Ind.Cas.940
AppellantVeerappa thevar and ors.
RespondentC.S. Venkatrama Ayyar
Cases ReferredSee Motilal v. Bhagavan Das
Excerpt:
civil procedure code (act v of 1908), section 64 - attachment--alienation by judgment-debtor after attachment but under previous agreement to sell--validity--right of attaching decree-holder to vendor's lien for unpaid purchase money. - .....31 a 443 : 3 ind. cas, 497 : 6 a.l.j. 645.2. the appeals are accordingly allowed and the order for sale made by the lower court is set aside. but we make no order as to costs because the decree-holder is entitled to satisfy his decree out of the unpaid purchase money owing by the appellants, and they should have paid this money into court when the execution proceedings were taken against them and so discharged themselves of their liability.
Judgment:

Cornish, J.

1. These appeals raise a common point. The three appellants were respondents to a decree-holder's execution petition for the sale of property attached prior to judgment. It; appears that a temporary injunction had been obtained to restrain the owner of the property, the later judgment-debtor, from alienating it. The matter was taken to the High Court on appeal, with the result that the order for an injunction was discharged and the property was attached. The High Court order was dated December 21, 1928, and the attachment was made on December 26, 1928. Prior to the attachment the owner of the property had entered into agreement with the appellants all on the same day, October 26, 1928, for the sale of the property. In pursuance of these agreement the property was conveyed by sale-deeds to the appellants, subsequent to the date of the attachment, The lower Court has found in favour of the validity of the agreements of sale, and this finding is not disputed in appeal. It has also found that there were certain balances of purchase money payable under the contracts, amounting is Rs. 32, 500, Rs. 8,000 and Rs. 5,412-8-0, respectively, which were unpaid at the date of the attachment. We see no reason for not accepting the correctness of the lower Court's finding on these heads. But the lower Court has ordered the sale of the property in execution for the recovery of these amounts with 9 per cent. interest which is payable under the contracts. We are of opinion that this order for the sale of the property cannot be justified. The question is covered by Mr. Justice Venkatasubba Rao's judgment in Paparaju Veeraraghavayya v. Kamala Devi 68 M.L.J. 67 : 157 Ind. Cas. 1104 : A.I.R. 1935 Mad. 193 : (1935) M.W.N. 488 : 41 L.W. 739 : 8 R.M. 213 with the reasoning of which we concur. The facts there were that two days prior to attachment there had been an agreement to sell the property. Subsequently a sale-deed was executed and the payment of the purchase money was completed at the same time. The learned Judge rejected the argument founded on Section 64, Civil Procedure Code, that the sale was void against the attaching creditor, holding upon the authority of Madan Mohan Dey v. Rebati Mohan Poddar 21 C.W.N. 158 : 31 Ind. Cas, 953 : A.I.R. 1916 Cal. 927 : 23 C.L.J. 115 and Venkata Reddi v. Vellappa Chetti 5 L.W. 234 : 38 Ind. Cas. 107 : A.I.R. 1917 Mad. 4 that the section could not invalidate a Bale in pursuance of an agreement to sell made prior to the attachment. In short, an agreement to sell creates an obligation to convey the property, and a latter attachment will not override the conveyance made in performance of that obligation. On the other hand the attachment holds good in respect of such right as the vendor had in the property at the time of attachment. 'What was and could be attached by the creditor' said Venkatasubba Rao, J. 'Was the right, title and interest of his debtor' at the date of the attachment and that right as to the unpaid balance of the purchase money, and the attachment, therefore, holds good to the extent of that balance. The judgment of Pearson, J., in Taraknath Mukerji v. Sant Kumar : AIR1929Cal494 Cal is to the same effect. In both of those cases the purchase money, had been fully paid and it was held that the decree-holder was entitled to receive the portion paid subsequent to his attachment. When, as in the present case, there is an unpaid balance of the purchase money (he attachment fastens to the judgment-debtor's right to recover the money, that is to say, to the charge which the unpaid vendor is given by Section 55(4)(6) of the Transfer of Property Act, upon the property. But the property having passed by conveyance from the judgment-debtor cannot be sold in execution of the decree against the judgment-debtor. See Motilal v. Bhagavan Das 31 A 443 : 3 Ind. Cas, 497 : 6 A.L.J. 645.

2. The appeals are accordingly allowed and the order for sale made by the lower Court is set aside. But we make no order as to costs because the decree-holder is entitled to satisfy his decree out of the unpaid purchase money owing by the appellants, and they should have paid this money into Court when the execution proceedings were taken against them and so discharged themselves of their liability.


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