Innocent purchasers without notice of any attachment order are protected, and the failure to implead in a relevant writ petition can bind the court to follow the conclusion of that judgment.

MANMOHAN, J.

1. Present two applications have been filed on behalf of Mr. Amit Ahuja and Ms. Shalini Ahuja, the objectors under Order 21 Rule 58 read with Section 151 CPC with the following common prayers:-

“(a)Allow the present Objections and release wholly the Property being C-160, Defence Colony, New Delhi – 110 024 from attachment;

(b)Direct the Decree Holder to remove the Property situated at C-160, Defence Colony, New Delhi – 110 024 from the List of the Properties of the Respondents/Defendants/Judgment Debtor; and

(c)Pass any other or further order(s) which this Hon’ble Court may deem fit in the interest of justice and equity.”

2. Mr. Sandeep Sethi, learned senior counsel for the applicants/objectors in both the applications states that the judgment debtor had transferred the property bearing No. C-160, Defence Colony, New Delhi – 110 024 by way of two registered sale deeds dated 26April, 2006 in favour of the objectors. He states that the restraint/stay order had subsequently been passed by this Court on 01st June, 2006. He points out that the recovery decree in favour of the decree holder and against the judgment debtor had been passed by this Court on 24August, 2007 and the attachment order in the present execution petition had been passed on 19December, 2008.

3. Mr. Sandeep Sethi relies upon Section 64(2) CPC to submit that private alienation of property before the attachment order would not be void.

4. Mr. Sandeep Sethi also relies upon a judgment of the Supreme Court in Hamda Ammal Vs. Avadiappa Pathar & 3 Others, (1991) 1 SCC 715 wherein it has been held as under:-

“In the above case this Court has gone even to the extent that not only a sale deed but even an agreement of sale will prevail over attachment before judgment made subsequent to such agreement for sale. We do not want to express any opinion with regard to the case of an agreement for sale, but we are of the confirmed opinion that a sale deed having been executed prior to attachment before judgment, though registered subsequently will prevail over attachment before judgment.”

5. On the other hand, Mr. Maninder Singh, learned senior counsel for decree holder contends that the objectors were not the innocent purchasers as they had constructive notice of the encumbrance created by the first attachment order dated 09March, 2004 passed at the instance of the Sales Tax Department. In this connection, Mr. Maninder Singh relies upon certain facts which had been noted by the Division Bench in its judgment and order dated 14December, 2012 passed in a writ petition by the objectors against the Sales Tax Department, namely, Amit Ahuja & Anr. Vs. Additional Commissioner Trade & Tax Department & Ors. (W.P.(C) 10316/2009). The relevant portion of the said judgment and order is reproduced hereinbelow:-

“17. The above narrative and discussion reveals that the suit property was originally owned by one Col. Buta Singh, who sold it to the sixth respondent’s predecessors in interest. Eventually, after their death, the property devolved on him. The materials on record reveal that he is the sole proprietor of the tax defaulter in question, i.e. M/s. Jagannath Dudadhar. It is also evident that at the time of issuance of attachment order, a garnishee order, concerning the proprietorship’s bank accounts were also issued. He had approached the tax authorities, and offered to clear some dues, which resulted in the vacation of the order attaching those bank accounts. The materials on record also reveal that contemporaneously, in March-April, 2004, the sixth respondent’s driver was served the warrant of attachment in respect of the property. All these can, in a sense, be sufficient material for the court to presume, under Section 114 Evidence Act. In this background of circumstances, the question is whether the Court can accept the argument of the revenue/tax authorities in this case that the Petitioner is not an innocent purchaser, and is deemed to have constructive notice of t