Sale in favour in plaintiff after order of attachment invalid.

The plaintiff is the appellant herein who lost in both the Courts below. The plaintiff seeks declaration and permanent injunction in respect of the suit property.

2. The facts of the case are as follows:

The suit property belonged to one Sudarsanam Reddiar. He mortgaged the property to one Muthulakshmi Ammal. The plaintiff claimed that he redeemed it and purchased the property after discharging the mortgage on 09.02.1978. While so, when the first respondent interfered with his possession, he made enquiries. He learnt that in a Court auction sale conducted in the execution proceedings in O.S.No.1704 of 1973 filed by the second respondent against the aforesaid Sudarsanam Reddiar, the first respondent purchased the property.

3. According to the plaintiff, he is a bona fide purchaser for value without notice and in any event the Court auction sale conducted is not in accordance with Order 21 Rule 54 C.P.C. and therefore it cannot be held to be a valid attachment or sale. The plaintiff had made enquires regarding any subsisting encumbrance and only thereafter had purchased the property and therefore he was entitled to the relief claimed.

4. The respondents in defence stated that in E.P.No.783 of 1974 to execute a decree in O.S.No.1704/1973, the suit properties were attached on 10.07.1974. The attachment was effected by tom-tom and other formalities. Later, the E.P. was closed on account of the Debt Relief Act coming into force but the attachment continued. After the moratorium period came to an end, the properties were brought to sale and on 09.06.1982, the second respondent purchased the property. In the meantime, the judgment debtor Sudarsanam Reddiar filed an application under Order 21 Rule 90 C.P.C. which was dismissed. The second respondent took delivery of the properties through Court on 08.08.1984. Sudarsanam Reddiar, who lost in his attempt to prevent the respondents from obtaining the fruits of the decree has now set up the appellant to file the suit. The trial Court dismissed the suit and appellate Court dismissed the appeal. Therefore, the present second appeal has been filed.

5. Learned counsel for the appellant submitted that the attachment has not been effected properly and therefore the sale itself must be set aside, in which case he would be entitled to the suit property as well as for injunction. He would also submit that the appellant had discharged the mortgage in favour of Muthulakshmi Ammal and had purchased the property for valuable consideration and cannot now be denied the suit property by a court auction sale which was not conducted in accordance with law. According to the learned counsel, the formalities laid down in Order 21 Rule 54 CPC were mandatory and failure to follow them would render the attachment null and void.

6. Reliance was placed on Sri Krishna Chit Funds (Sattur Pvt. Ltd.) vs. R.S.Pillai ( 2000 (II) CTC 524), where it was held that if the mandatory provisions regarding the manner in which attachment should be effected have not been followed, the order of attachment cannot be sustained; and when the bona fide purchaser had also discharged all the disclosed debts and had no knowledge of the order of attachment, the decree holder cannot proceed against that property.

7. Vijaya College Trust vs. Kumta Co-op. Arecanut Sales Society Ltd. (AIR 1995 Karnataka 35) was relied on to show that a party relying on attachment has to prove that attachment was effected in compliance with provisions of law.

8. Mansoor Ali Vs. Azizul Rahman (AIR 1990 Patna 224) was also relied on to show that unless service of notice of attachment on defendant is effected in prescribed form, the order of attachment is not valid.

9. Learned counsel for the respondents on the other hand would submit that Section 64 CPC would render the transfer in favour of the appellant invalid. It was also submitted that the appellant had not established that he had discharged the mortgage and further that Section 64 CPC does not disting