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1977 Supreme(AP) 313
Andhra Pradesh High Court
Judges : LAKSHMAIAH
Mohd.Hussain - Appellant
Versus
Syed Raheemuddin - Respondent
Decided On : 11-01-77
An attachment before judgment of immovable property to be effective must be shown to be quite in conformity with the provisions contained in Order 21, Rule 54 C. P. C. read with Form 24 of Appendix e to C. P. C.
Headnote:
ATTACHMENT BEFORE JUDGMENT - ATTACHMENT OF IMMOVABLE PROPERTY - ORDER OF ATTACHMENT - PROHIBITION AGAINST ALIENATION - ESSENTIAL - ATTACHMENT INVALID WITHOUT PROHIBITION - SALE OF PROPERTY SUBJECT TO INVALID ATTACHMENT - VALID.
Fact of the Case:
The plaintiff purchased a property from the owner, Haji Mohd. Abdul Waheb, on 30.10.1964. The 1st defendant was the tenant of the said owner on a monthly rent of Rs. 12/-. The plaintiff issued a notice to the 1st defendant to vacate the premises as he did not pay the rent or execute the lease-deed in his favor. The 1st defendant filed a written statement stating that one Syed Ahmed filed a suit against the vendor of the plaintiff on 20-3-1964, seeking the recovery of certain amounts due to him, and obtained an attachment before the judgment of the plaint schedule property on 25-3-1964. The 1st defendant, therefore, contended that the sale in favor of the plaintiff during the subsistence of the attachment was void and it did not confer any title or rights upon the plaintiff. The 2nd defendant contended that she is the owner of the property on account of the purchase made in her favor on 3-1-1966, and the sale-deed executed by her judgment-debtor in favor of the plaintiff during the subsistence of the attachment was void and it did not bind her.
Finding of the Court:
The court held that the attachment before the judgment was not properly effected and was therefore not valid and consequently the plaintiff's sale deed was not vitiated. The court further held that the attachment of the property was void and that consequently the plaintiff, who has purchased the property, gets title to the property.
Issues: Whether the attachment before the judgment effected in this case was quite in conformity with Form No. 5 of Appendix f in vogue here at Hyderabad, and therefore, the sale effected in favor of the plaintiff contrary to the attachment is bad.
Ratio Decidendi: The court held that any private transfer or delivery of the property attached contrary to such attachment, shall be void as against all claims enforceable under the attachment, as per section 64 of the Code of Civil Procedure. The court further held that Rule 7 of Order XXXVIII provides for the mode of making attachment and reads thus:- "7. Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree". The court also held that Order XXI of the Code of Civil Procedure, by rule 54 provides for the attachment of immovable property, which, in so far as it material, reads thus:- "54 (1). Where the property is immovable, 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 charges". The court further held that these are the applicable provisions of law and forms governing the issuance of attachment before judgment in so far as it relates to immovable property.
Final Decision: The court dismissed the appeal with costs confirming the judgment and decree of the lower court.
( 1 ) THE defendants having lost before both the courts below preferred this appeal under section 100 of thecode of Civil Procedure, aggrieved by the judgment and decree dated 29th August 1975, passed by the Additional Chief Judge (Temporary) City Civil Court Hyderabad jn A. S. No. 198 of 1973, whereby the learned Judge dismissed the appeal and confirmed the judgment and decree dated 25-9-1973 passed in O. S. No. 246 of 1968.
( 2 ) THE suit giving rise to the above Second Appeal was instituted by the respondent herein against the 1st appellant for declaration of his title to and for recovery of possession of the mulgi bearing No, 1-6-260/2 situate at Agapura, Hyderabad and for damages for the use and occupation.
( 3 ) THE case for the plaintiff is that the plaint schedule property originally belonged to one by name Haji Mohd. Abdul Waheb. The 1st defendant was stated to be the tenant of the said owner on a monthly rent of Rs. 12/- The respondent plaintiff purchased the property from the owner under a registered sale-deed dated 30. 10. 64. The vendor informed the 1st defendant to pay the rents to the plaintiff from 1-11-1964 onwards. As the 1st defendant did not either pay the rent or execute the lease-deed in favour of the plaintiff, the respondent-plaintiff issued a notice to the first appellant-defendant, requiring him to vacate the premises. As no reply was given, the above suit was instituted.
( 4 ) THE 1st defendant filed a written statement stating that one syed Ahmed filed a suit against the vendor of the respondent on 20-3-1964, seeking the recovery of certain amounts due to him, in o. S. No. 68/64 on the file of the 3rd Assistant Judge, City Civil Court hyderabad, and obtained an attachment before the judgment of the plaint schedule property on 25-3-1964, and the suit was subsequently decreed on 16-3 1965. The 1st defendant therefore contended that the sale in favour of the plaintiff during the subsistence of the attach, ment was void and it did not confer any title or rights upon the rerpondent-plaintiff.
( 5 ) IT is further alleged in the written statement thatthe decree holder, Syed Ahmed transferred the decree to one Putli Begum, who got herself subsequently impleaded in the suit as the 2nd defendant. She filed E. P. No. 37/1965 and brought the property to sale in execution of that decree. Haji Mohd. Abdul Waheb, the vendor of the respondent, executed a registered sale-deed dated 3-1-1966 in her favour for consideration of the decretal amount. Therefore, according to the 1st defendant, it is the 2nd defendant that is the real owner of the property and not the plaintiff. It is lastly asserted that there is no relationship of landlord and tenant between him and the respondent.
( 6 ) THE 2nd defendant contended that she is the owner of the property on account of the purchase made in her favour on 3-1-1966, and the sale-deed executed by her judgment-debtor in favour of the plaintiff during the subsistence of the attachment was void and it did not bind her.
( 7 ) THE Assistant Judge, after having framed the relevant issuses, held that the attachment before judgment was not properly effected and was therefore not valid and consequently the plaintiff s sale deed was not vitiated. So observing, the lower court decreed the suit declaring the plaintiff s possession and title and directing payments of subsequent damages for use and occupation,
( 8 ) THE defendants thereafter carried the matter in appeal, A-S no. 51 of 1971 on the file of the Chief Judge, City Civil Court, Hydera bad, contending that the attachment did not take place under proper form and therefore it was invalid. The learned counsel for the defendants contended that the forms of attachment before judgment are the forms prescribed by the Civil Procedure Code which were in vogue in the City Civil Court, Hyderabad, even at the time of erstwhile hyderabad, State, and that the correct form No. 7-A of Schedule-F, introduced by the Madras Government, w
