JUDGMENT

T. S. Misra, J. - This is a plaintiff's appeal arising out of a suit for declaration to the effect that the property involved was not liable to be sold in execution of the decree passed in suit No. 387 of 1962 and that the plaintiff is the owner of that property. The case of the plaintiff may briefly be stated as follows :-

On 24 August 1963 the defendant No. 2, who was the erstwhile owner of the property in question, sold it to the plaintiff for a sum of Rs. 2,000/- and put him in possession thereof. The defendant No. 1 had instituted a suit No. 387 of 1962 against the defendant No. 2. That suit was decreed on 6th February, 1963. It was alleged by the plaintiff appellant that the defendant No. 2 satisfied that decree in its entirety in the month of June, 1963. It was also alleged that at the time of the execution of the sale deed the defendant No. 2 had assured the plaintiff that only a sum of Rs. 733.40 which was due towards a decree passed in another suit No. 28 of 1962 was outstanding against him and that the property in dispute had not been put under attachment before judgment. The plaintiff, however, further alleged that the attachment before judgment which was said to have been made on 1st December, 1962 in the suit No. 387 of 1962 was illegal, inoperative and not binding in as much as the provisions of order 38, Rule 5 and 6, C. P. C. as also of Order 21, Rule 24, C. P. C. had not been followed and no attachment of the property before the sale of the same to the plaintiff had been made in accordance with law. The suit was contested by the defendant No. 1 on a number of grounds inter alia alleging that the plaintiff was not entitled to sue, that the attachment of the said property had been properly made, and the suit was barred by the principles of res judicata. The suit was not contested by the defendant No. 2. The trial court found that the plaintiff had acquired valid title in the property in dispute and the said property had not been properly attached and was, therefore, not liable to be sold in execution of the decree in question. The plea of the bar of res judicata was, however, repelled. The trial court, therefore, decreed the suit. Against that decision the defendant Puran Chand preferred an appeal. Concurring with the trial court it was held by the appellate court below that a sum of Rs. 700/- said to have been paid orally had not really been paid. It, however, held that a valid attachment had been made by the court amin and that the transfer made in favour of the plaintiff was void as against the said attachment, hence the property was liable to be sold in execution of the decree in question. The appeal was, therefore, allowed and the suit of the plaintiff was dismissed. Aggrieved, the plaintiff has now come up to this court in second appeal.

2. It was submitted by the learned counsel for the plaintiff appellant that no attachment before judgment of the property in question was made in conformity with the provisions of Order 38, Rule 7 read with Order, 21, Rule 54, C. P. C. and as such the sale of the property in favour of the plaintiff by the judgment-debtor was not hit by the provision of Sec. 64 C. P. C.

3. To appreciate the arguments advanced on behalf of the appellant it may be useful to examine, in brief, the scope of Order 38, Rule 5, C. P. C. The provisions of Order 38, Rule 5 of the Code of Civil Procedure are to prevent a decree that may be passed being rendered in fructuous whereas the provisions of Rule 1 (b) of Order 39 of the said Code are applicable where the defendant threatens to dispose of his property to defraud creditors. When an application is moved under Rule 5 of Order 38 in a suit, the Court has to be satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdict