The sufficiency of attachment under Order 21 Rule 97 cannot invalidate a court sale if objections were not raised appropriately, and subsequent transfers to defeat creditors are void.

JUDGMENT

An auction purchaser in a Suit for recovery of money has come up with this Execution Second Appeal, aggrieved by the findings rendered by the execution court allowing an application under Order 21 Rule 97 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”).

2. The brief facts necessary for the disposal of the appeal are as follows:-

O.S.No.435/2004 was instituted by the appellant for recovery of money. Pending the Suit, an application for attachment was preferred as IA No.1870/2004 and on 30.06.2004 the attachment was ordered. Ignoring the order of attachment, the defendant in the Suit sold the property to one Balamurugan on 03.03.2005 and subsequently in the year 2008, the assignee of defendant has transferred the property to one Babu for Rs.4,50,000/- and the claim petitioner purchased the property on 08.04.2009 for a sale consideration of Rs.4,60,000/- by which time, the auction of the property was conducted. Pursuant to the sale, the decree holder applied for delivery of the property and at this point of time, an application under Order 21 Rule 97 of CPC,1908 was preferred by the respondents herein contending that there was no proper procedure followed for effecting the attachment ordered by the Court and hence, there is no valid attachment in the eye of law. This found favour with the executing court and accordingly, the application under Order 21 Rule 97 of the CPC was allowed. Aggrieved, the auction purchaser preferred A.S.No.325/11 which was dismissed by the District Court by judgment dated 11.08.2015 and hence this appeal raises the substantial question of law as framed in the memorandum of appeal.

“1. Is the Lower Appellate Court justified in holding that the alleged in-adequacy in the attachment of the property vitiates the Court sale and whether such objection can be considered in a claim petition filed Under Order 21 Rule 97 CPC ?

2. Whether on the facts and circumstances of the case when the Court Sale is not impugned either Under Order 21 Rule 90 CPC or Under Section 47 CPC is it legal and proper to consider the validity of the sale at the stage of delivery?

3. Whether on the facts and circumstances of the case in view of the Provision 64 CPC is not the assignment by the Judgment Debtor void as against the attaching creditor?

4. Whether on the facts and circumstances of the case is not the transfer made after filing of the suit and after the issuance of order of attachment is a fraudulent one by Section 53 of the Transfer of Property Act, 1882 ?

5. Whether the Order/Judgment of the Courts below are Justified in law?”

3. Heard Sri. R. Sreehari, the learned counsel appearing for the appellant and Sri. Sajan Varghese, the learned counsel appearing for the respondents 1 & 2 and Sri. Rajesh Sivaramankutty, the learned counsel appearing for the 3^rd respondent.

4. Shri R Sreehari, learned Counsel appearing for the appellant took exceptions to the finding of the courts below on the validity of the sale in an application under Order 21 Rule 97. According to the learned Counsel, the Judgment debtor was issued with a notice to show cause as to why the attachment shall not be ordered in the case. He has admittedly received the notice and thereafter sold the property to Balamurugan who in turn sold the property to one Babu. When the obstructors before the court below purchased the property on 8-4-2009, the sale was already completed and confirmed on 29-11-2008 and hence the sale is clearly hit by Se