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Gosta Behari Biswas and anr. Vs. Sankar Nath Mukerjee and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.510
AppellantGosta Behari Biswas and anr.
RespondentSankar Nath Mukerjee and anr.
Cases ReferredDinoBundu Shaw Choudhry v. Jogmoya Dasi
Excerpt:
civil procedure code (act v of 1908)section 64 order xxi, rules 54, 89 - transferee of immoeable property under attachment, locus standi of to apply under order xxi, rule 89--sale in execution of, decree, application to set aside, by transferee from judgment-debter. - .....the property to the opposite party. on the 11th december 1914, the property was put up to sale in execution of the decree and was purchased by the petitioner. on the 7th january 1915, the transferee from judgment-debtor applied under order xxi, rule 89. the execution court on the 20th february 1915 held that he had no locus standi and dismissed his application. on appeal the district judge reversed his order on the 25th april 1916. we are now invited to hold that the district judge should have affirmed the view of the primary court, that the transferee from the judgment-debtor had no locus standi to make an application under rule 89, no question has been raised before us as to the competence of the district judge to entertain the appeal presented to him.2. rule 8.9 provides that.....
Judgment:

1. The question for decision in this Rule is, whether a transferee of immoveable property, which has been attached in execution of a decree for money, is competent to make an application for cancellation of the sale under Rule 89 of Order XXI of the Code of 1908. The decree-holder attached the disputed property on the 30th July 1914. On the 9th September 1914, the judgment-debtor transferred the property to the opposite party. On the 11th December 1914, the property was put up to sale in execution of the decree and was purchased by the petitioner. On the 7th January 1915, the transferee from judgment-debtor applied under Order XXI, Rule 89. The execution Court on the 20th February 1915 held that he had no locus standi and dismissed his application. On appeal the District Judge reversed his order on the 25th April 1916. We are now invited to hold that the District Judge should have affirmed the view of the Primary Court, that the transferee from the judgment-debtor had no locus standi to make an application under Rule 89, No question has been raised before us as to the competence of the District Judge to entertain the appeal presented to him.

2. Rule 8.9 provides that an application for cancellation of a sale may be made by any person, either owning the property sold in execution or holding an interest therein by virtue of a title acquired before such sale. The opposite party contends that he was at the time when he made the application the owner of the property within the meaning of the Rule, and that in any event, he held an interest therein by virtue of ft title acquired before the execution sale. The petitioner answers that the title was not operative against the decree-holder under Section 64 and Order XXI, Rule 54, and consequently not also against him, as he has purchased at the instance of the decree-holder. Special stress is laid upon Rule 54, which provides in Sub-rule (1) that where property is immoveable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. The contention is that a person who, in violation of Rule 54, Sub-rule (1), takes attached property, acquires no title or interest therein, not only as against the decree-holder at whose instance the attachment was effected, but also as against the purchaser at the execution sale held on the basis of such attachment. In our opinion, this contention is too broadly expressed. Section 64 defines the effect of a purchase made in contravention of Sub-rule (1) of Rule 54. In the Code of 1882, the provision corresponding to Rule 54 appeared as Section 274 and was followed by Section 276 now replaced by Section 64. The effect of Section 64 is not to invalidate for all purposes a transfer of property which has been previously attached. The effect is of a limited character and is best described in the terms used by the Legislature in Section 64. Where an attachment has been made any private transfer, or delivery of property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other money contrary to such attachment shall be void as against all claims enforceable under the attachment. That this rule has a restricted application was pointed out by the Judicial Committee in the ease of Anund Loll Doss v. Jullodhur Shaw 14 M.L.A. 543 : at P. 549 : 10 B.L.R. 134 (P.C.) : 17 W.R. 313 : 2 Suth. P.C.J. 559 : 3 Sar.P.C.J. 81 : 20 E.R. 888, where Sir Robert Collier discussed the effect of Section 240 of Act VIII of 1859, which used even stronger terms than what finds a place in Section 64, and enacted that 'a private alienation of an attached property, whether by sale, gift or otherwise, during the continuance of the attachment, shall be null and void.' Sir Robert Collier put this question are these words to be taken in the widest possible sense, i. e., null and void against all the world including even the vendor, or to be taken in the comparatively limited sense attached to them by the Courts in India? He then adopted the language of Sir Barnes Peacock in the judgment under appeal Anand Chandra v. Radhamohan Shaw 2 B.L.R. (F.B.) 49 : 11 W.R. 10 and held that the object was to make the sale null and void so far as it might be necessary to secure the execution of the decree and, therefore, related only to alienation which would affect the creditor who obtained the attachment. The same view was affirmed with reference to the corresponding provision in subsequent Codes, in the case of DinoBundu Shaw Choudhry v. Jogmoya Dasi 29 C. 154 : at p. 166 : 10 M.W.J. 73 (P.C.) : 4 Bom.L.R. 238 : 29 I.A. 9 : 6 C.W.N. 209. In the case before us, there is no question of protection to the decree-holder or the enforcement of the claim under the attachment. The effect of the application under Rule 89, if granted, is forthwith to satisfy the entire decree. It may be that in some instances the effect is to place the decree-holder in a better position than he occupies under the execution sale. For instance, it is conceivable that the execution sale might not have realised an amount sufficient to satisfy the entire decree. If an application is made under Rule 89 and is allowed, the first condition for the grant of the application is that the entire decree should be satisfied. Consequently, by no stretch of language can it be said that when an application is made in conformity with Rule 89, any question arises as to a claim enforceable under the attachment within the meaning of Section 64. We must hold accordingly that the transferee from the judgment-debtor after attachment became the owner of the property and un doubtedly acquired an interest therein within the meaning of Rule 89 and was competent to apply under that section.

3. The result is that this Rule is discharged with costs, one gold mohur.


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