Section 64 of CPC is applicable only to transfers after attachment.

(Appeal filed against the judgment and decree dated 31.1.2006 in C.M.A. No.13 of 2005 on the file of the District Court, Nagapattinam against the order dated 5.7.2005 made in E.A. No.70 of 2004 on the file of the Sub Court, Nagapattinam, as stated therein.)

The appellant herein filed an application in his capacity as third-party in E.A. No.70/04 in E.P. No.108/04 in O.S. No.159/03 under Order XXI Rule 58 and Order XXXVIII Rule 8 of the Code of Civil Procedure to remove the attachment made in the suit property. The said petition was dismissed by the Execution Court as against which C.M.A. No.13/05 was preferred before the District Judge, Nagapattinam. A concurrent verdict was recorded by the appellate Judge in C.M.A. No.13/05. The petitioner herein, who is a third-party to the trial proceedings and has lost his plea to raise the attachment, both before the trial court as well as before the appellate court, has come forward with the present appeal.

2. The suit was filed by the first respondent herein as against the 2nd respondent on 21.10.03 for recovery of a pro-note debt from the 2nd respondent. On the very same day, notice was ordered in I.A. No.421/03 in O.S. No.159/03 directing the 2nd respondent to furnish security for the said amount. As the 2nd respondent did not furnish any security, an order of attachment was made on 14.11.03 and the order of attachment was effected on 25.11.03. Thereafter, the suit was decreed in favour of the first respondent. Based on such decree obtained by the first respondent, E.P. No.108/04 was laid by the first respondent against the 2nd respondent.

3. The appellant, who is a third-party, filed an application to raise the attachment on the ground that he having entered into an agreement for sale way back on 5.11.02, clinched the sale transaction by way of a sale deed dated 21.10.03 in respect of the suit property. The order of attachment effected on 25.11.03, well after the execution of the sale deed in favour of the appellant based on the agreement for sale dated 5.11.02, will not bind the appellant. Therefore, the appellant has prayed for raising the attachment made, subsequent to his purchase, in the suit in O.S. No.159/03.

4. The execution court having observed that the very sale deed, Ex.P-1, alleged to have been executed on 21.10.03 based on the sham and nominal agreement for sale dated 5.11.02 has been created only for the purpose of defrauding the first respondent, who is the creditor of the 2nd respondent, refused to raise the attachment ordered in the suit.

5. The appellate Judge, having adverted to the provision under Section 64 of the Code of Civil Procedure and the alleged sham and nominal transaction of the 2nd respondent with the appellant, confirmed the order passed by the execution court.

6. Learned counsel for the appellant would submit that inasmuch as the sale deed itself was executed long prior to the order of attachment effected by the trial court in O.S. No.159/03, the said order does not bind the appellant, who is the purchaser of the property for valuable consideration from the 2nd respondent. Therefore, the attachment made subsequent to the sale effected in favour of the appellant will have to be raised.

7. Learned counsel for the first respondent would submit that the whole sale transaction in favour of the appellant by the 2nd respondent is void inasmuch as the appellant and the 2nd respondent had clinched the deal in order to defeat the interest of the first respondent, who is the creditor in the case. Referring to Section 53 of the Transfer of Property Act, 1882 and Order XXI Rule 58 (2) of the Code of Civil Procedure, learned counsel for the first respondent would submit that the sham and nominal sale transaction fraudulently made will have to be avoided.

8. Section 64 of the Code of Civil Procedure reads as follows :-

"S.64 (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any paymen