Private transfer after attachment void under Section 64 CPC against decree holder's claims; claimant must prove bona fide purchase via precise encumbrance verification.

JUDGMENT :

A.D. MARIA CLETE, J.

1. This Second Appeal is filed by the decree holder against the judgment and decree dated 31.08.2012 passed by the learned II Additional Judge , City Civil Court, Chennai in A.S. No. 310 of 2011, confirming the fair and decretal order dated 29.06.2011 made in E.A. No. 5619 of 2010 in E.P. No. 1526 of 2008 in O.S. No. 6601 of 2002.

2. For the sake of convenience, the parties in Execution Application No. 5619 of 2010 are hereafter referred to as follows: the applicant as “Claimant” the 1st respondent as “Decree Holder” and the 2nd respondent as “Judgment Debtor”.

3. The brief facts necessary for the disposal of this appeal are as follows:

The Decree Holder instituted O.S. No. 6601 of 2002 on 31.12.2002 against the Judgment Debtor for recovery of Rs.2,96,000/- with interest at 24% and costs. The suit was decreed ex parte on 21.04.2003. On the strength of the ex parte decree, the Decree Holder filed E.P. No. 1952 of 2003 seeking attachment and sale of the petition schedule property, viz., undivided half share in the vacant land in Door No. 14-B, Chamiers Road, Teynampet, comprised in R.S. No. 3880/5 (part), as per patta R.S. No. 3880/53, in Teynampet Village, bounded on the North by Achiah Plot, South by Shoba Devi property, East by Abdul Salam house and ground, and West by Ganesapuram Lane, measuring an extent of 1800 sq.ft., within the Registration District of Central and Sub-Registration District of Central Madras (hereinafter referred to as “the property”). In the said execution petition, an order of attachment was passed on 02.04.2004. The attachment was effected on 27.04.2004 and entry in Book I was made in the office of the Sub-Registrar on 29.04.2004.

4. In E.P. No. 1952 of 2003, the Claimant filed E.A. No. 173 of 2005 to raise the attachment. Simultaneously, the Judgment Debtor filed an application to set aside the ex parte decree along with I.A. No. 7249 of 2004 to condone the delay. The said I.A. No. 7249 of 2004 was dismissed for default on 03.12.2004. Thereafter, the Judgment Debtor filed I.A. No. 1529 of 2005 to restore I.A. No. 7249 of 2004 and I.A. No. 1530 of 2005 to stay execution proceedings. Both applications were allowed on 10.02.2005. The Decree Holder filed C.R.P. Nos. 1059 and 1060 of 2005 against the said order. This Court, by order dated 12.10.2006, set aside the ex parte decree on condition that the Judgment Debtor should deposit 50% of the decreed amount. Pursuant thereto, the Judgment Debtor deposited Rs.2,56,710/- on 30.11.2006, and the suit was restored. Consequently, the ex parte decree was set aside, the execution petition and claim application were closed, and the attachment dated 27.04.2004 was raised on 20.12.2006, with corresponding entry in Book I.

5. After restoration of the suit, the defendant again defaulted, and consequently, the trial Court passed an ex parte decree for the second time on 11.01.2007. The Decree Holder thereafter filed E.P. No. 1526 of 2008 for realization of the decree amount after adjusting Rs.2,56,710/-. In this execution petition, attachment was again ordered and affixture was made. The Claimant filed the present claim petition E.A. No. 5619 of 2010 to raise the attachment.

6. The Claimant claims title under Ex. P1 sale deed dated 06.05.2004 purchased from the Judgment Debtor and others. He contends that he is a bona fide purchaser for value without notice, having verified encumbrance certificates which did not disclose attachment. He further claims ign