ORDER :- This is a petition under Article 226 of the Constitution. It challenges the orders of the Deputy Director of Consolidation dated 18th July, 1970 and that of the Settlement Officer (Consolidation) dated 3rd July, 1963.

2. The facts leading up to this petition lie in a narrow campass.

3. The disputed plot was, admittedly, the bhumidhari land of Gurbachan Singh. On 5th September, 1961, he entered into an agreement to transfer the said plot to Sita Ram and others, respondents Nos. 4 to 10. Sardar Banta Singh, the petitioner filed a suit No. 49 of 1961 in the court of the Civil Judge and during the pendency of the suit, he obtained an order of attachment before judgment on 23rd November, 1961. A Commissioner was appointed the same day to attach the disputed plot who complied with the order the same day.

4. It appears that the very next day, Gur Bachan Singh executed a sale deed in favour of respondents Nos. 4 to 10 pursuant to the agreement dated 5th September, 1961. Eventually the petitioner's suit was decreed against Gurbachan Singh on 23rd September, 1963. In execution of the decree, the disputed plot was put up for auction on 16th August, 1964. The petitioner being the highest bidder, his bid was accepted and he himself, purchased the plot at the auction and obtained formal possession on 31st May, 1965. In the meantime the vendees from Gurbachan Singh, Sita Ram and others, got their names mutated pursuant to the sale deed in their favour.

5. When the village was brought under consolidation operations, the petitioner filed an objection under Section 9-A of the U. P. Consolidation of Holdings Act claiming to be the tenure-holder of the disputed plot on the basis of auction sale. He prayed for the expunction of the names of Sita Ram and others, respondents Nos. 4 to 10. His claim was resisted by respondents Nos. 4 to 10 (sic) on the ground, inter alia, that the sale in favour of respondents Nos. 4 to 10, pursuant to the agreement of sale was void as the sale took place after the attachment of the property by the Court under Section 64, C.P.C.

6. The Consolidation Officer held that the sale in favour of Sita Ram and others, after the attachment of the property before judgment was invalid and no title passed to them. Accordingly, he allowed the objection of the petitioner and directed for the expunction of the names of the vendees, Sita Ram and others. On appeal, the Settlement Officer (Consolidation) reversed the order of the Consolidation Officer and held that the sale in favour of Sita Ram and others by Gurbachan Singh being pursuant to an agreement entered into on a day prior to the date of attachment before judgment was a valid sale. The petitioner, feeling aggrieved went up in revision against the order of the Settlement Officer (Consolidation), but the Deputy Director of Consolidation confirmed the order of the Settlement Officer (Consolidation). The petitioner has now come to this Court.

7. The only question for consideration in this petition is whether the sale deed executed by Gurbachan Singh pursuant to an agreement of sale dated 5th September, 1961 prior to the date of attachment before judgment was or was not a valid one.

8. Sri B. D. Tripathi, appearing for the petitioner, contended that the sale of the disputed plot in favour of respondents Nos. 4 to 10 after the attachment of the property was void ab initio and did not confer any right on respondents Nos. 4 to 10 and the Deputy Director of Consolidation committed a manifest error in holding to the contrary. In support of his contention, he relied upon Dular Singh v. Ram Chander, AIR 1934 All 165. It was held in that case that the only effect of the attachment before judgment is to prevent the judgment-debtor from making a transfer of the attached property during the continuance of the attachment so that the benefit of attachment may be available to him when he seeks to enforce his decree which might subsequently be passed. The order of attachment does not create a

Click Here to Read the rest of this document