An attachment order takes effect from the date of the order, not from the date of knowledge of the appellant, and a sale in fraud of creditors is void.

1. This civil miscellaneous appeal has been filed against the order of the learned Subordinate Judge, Kancheepuram, dismissing the application filed by the appellant in I.A. No. 503 of 1989 in O.S. No. 53 of 1989 for raising the attachment over the schedule mentioned property.

2. The first respondent herein filed the suit against the second respondent herein for recovery of Rs.94,680 due on a promissory note executed on 10. 1988. The suit was filed on. 13. 1989. Alongwith the plaint, the first respondent filed an application under Order 38, Rule 5 and Section 151, C.P.C. for attachment before judgment of the property belonging to the second respondent. On the same date, the learned Subordinate Judge, passed the following order: "Notice and Heard. Respondent is directed to furnish security for a sum of Rs.75, 000 failing which attachment by 14. 89. On 23. 89 attachment was actually effected. Alleging that he had purchased the property on 13. 89 subject to two mortgages the appellant filed an application under Order 38, Rule 8 C.P.C. for raising of attachment. This application was opposed by the first respondent contending that the attachment order was passed as early as on 13. 89 and knowing fully well of the attachment order, the appellant had purchased the property. The sale deed was only a sham nominal and collusive transaction, that no consideration had passed under the sale deed, that the appellant was not a bona fide purchaser of the property, and that no grounds had been made out for raising the attachment. It was contended that even on the date of attachment it was only the second respondent who was in possession of the property. The learned Subordinate Judge, Kancheepuram, dismissed the application holding that the sale deed had come into effect after the date of attachments that the sale was also hit by the provisions of Section 53 of the Transfer of Property Act, that it was intended to defeat the. claim of the creditors. As against this order, the present appeal has been preferred.

3. Mr. N.Vanchinathan, learned counsel for the appellant submitted that on the date of purchase by the appellant, there was no order of attachment, but, attachment was effected only on 23. 1989. The learned counsel further contended that the lower Court omitted to note that the order of attachment itself had not been passed as per the provisions of Order 38, rule 5, C.P.C., that the affidavit filed in support of the application for attachment did not contain the necessary particulars or allegations as contemplated under the said provision, that the provisions, of Order 38, Rule 5 and 6 had not been properly complied with, that attachment could take effect only from the date of effecting attachment and not from the date of order. The learned counsel further contended that no opportunity had been given to the second respondent to show cause as to why an order of attachment should not be made, that in any event the appellant was a bona fide purchaser and as undertaken in the sale deed he had already discharged two mortgages on the property. The learned counsel urged further that the lower Court was clearly wrong in holding that the appellant entered into the sale transaction fully aware of the order of attachment. The learned counsel also relied on the following two decisions;

(1) P.Ramaswamy v. Sri Dhandayuthapani Finance, Sankari, 1986 (II) MLJ 387 : 99 L.W. 404 and (2) N.Papammal v. L.Chidambaram, 1984 (I) MLJ 148.

4. Per contra, Mr. G.Subramaniam, learned senior counsel appearing for the first respondent submitted that having regard to the pro-visions of Order 21, rule 54, Clause 3 Madras Amendment, the attachment would take effect from the date of the Order, that the learned subordinate Judge had categorically found, that there was collusion between the appellant and the second respondent, that there were absolutely no bona fides on the part of the appellant, that there were vital discrepancies between what was stated in th