The rights of third parties created prior to attachment are protected under O. XXXVIII, Rule 10, C. P. C., and the sale made pursuant to a prior agreement of sale cannot be vitiated in terms of Section 64 of the Civil Procedure Code.

1. This case has a chequered history. The petitioners filed objection petition for release of their lands, in question, from the effect of attachment and sale by Court, which objection was registered as Miscellaneous Case being Misc. Case No. 28 of 1977, which was dismissed by learned Sub-Judge, 1st, Jehanabad, by order dated 18-8-1987. Being aggrieved by dismissal of their objection, they filed the present civil revision application. Civil Revision application upon contest was allowed by this Court by judgment and order dated 15-2-1991. In the said judgment this Court held that transmission of attachment order, which was attached prior to attachment by a Court in one Sessions Court to another Subordinate Court under another District Court instead of being routed through other District Judge was in contravention to Section 136 of Civil Procedure Code and that being so, the attachment prior to judging being invalid. The sale of the property, in question, which was ultimately sold by Court pursuant to attachment was not a valid sale and it could have been validly sold by private sale even though after the order of attachment. The civil revision application was thus allowed. While allowing the civilly revision, this Court noted another important contention. It noted that in respect of property attached prior to judgment, defendant had entered into an agreement for sale much prior to order of attachment. Registered sale deeds were executed after orders of attachment. It was observed that though not conclusively held that attachment would thus be subject to the agreement for sale and if that be so, then the sale made pursuant to prior agreement of sale could not be vitiated in terms of Section 64 of the Civil Procedure Code. This issue, so noticed in detail, was not thought to be necessary to be decided as civil revision application was allowed on the other issue of Section 136, C. P C.

2. The sole opposite party, who was the decree holder and who had purchased the property, in satisfaction of the decree in Court sale, appealed to the Apex Court. The Apex Court after hearing the parties set aside the judgment of this Court in Civil Appeal No. 4394 of 1991 disposed of on 11-5-2001 since reported in (2001) SCC 213 : AIR 2001 SC 2220. They over rule the decision of this Court on the first issue of Section 136, C. P. C. but while doing so, noticed the second aspect of the matter, which was not finally decided by this Court. They thus remanded the matter to this Court for a fresh decision on the second issue clearly noticing that on the second issue the Apex Court has already rendered judgment in the case of Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishan and another since reported in (1990) 3 SCC 291, in which the Apex Court has already held that agreement of sale of land in favour of a party entered into prior to attachment of the land in execution of decree obtained by a third party but sale pursuant to the agreement taking place subsequent to the attachment. It was held that the sale would prevail over the attachment as contractual obligation created by the pre-attach- ment agreement of sale in respect of ownership of the land while the attachment is only of right, title and interest of the judgment debtor and binds on the owner of the land at all future time while the attachment is only of right, title and interest of the judgment debtor. This case has now been pending for final hearing for almost a decade. In between, petitioner No. 2 Rameshwar Singh alias Rameshwar Sharma died and was substituted by his heirs by order of this Court dated 17-2-2003. The sole-opposite party, who is the plaintiff-decree holder and purchaser Rajendra Singh also died and was substituted by his heirs and representative by order dated 17-2-2003 of this Court. All substituted persons have appeared by filing fresh Vakalatnamas including Vakalatanama of the opposite party.

3. Heard all the parties.

4. The facts relevant for disposal