Subsequent assignees cannot claim rights over property if the original sale is deemed void under Section 64 of the Code of Civil Procedure.

JUDGMENT

This appeal arises out of the concurrent findings rendered by the Execution court and the 1^st appellate court in an application under Order

21 Rule 97 of the Code of Civil Procedure , 1908.

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

3. The petitioner claims that he derived title over the property by virtue of the sale deed no.80/1986 of SRO, Kattoor. While an attempt was made to have the property delivered in execution of judgment and decree in O.S No.2767/1985. At that point of time, the appellant came to know about the passing of the decree in the property. Hence, an application for resistance under Order 21 Rule 97 CPC was filed. The respondent decree holder resisted the application and contended that the respondent purchased the property in pursuance to the execution of the judgment and decree in O.S. No.2767/1985. During the pendency of the suit for recovery of money, an application for attachment was filed, which was ordered. The attachment before judgment was effected on 10.12.1985. Before ordering the property to be attached, a show cause notice was issued to the judgment debtor to show cause as to why he shall not be directed to furnish the security in respect of the plaint claim. On failure of the judgment debtor to furnish the security, the attachment was made absolute. It is also pointed out that the judgment debtor also raised an objection to the order of attachment and after the attachment was passed, he remained exparte in the suit and hence the decree was passed. Thus, it is pointed out that as on the date of sale deed in favour of the appellants i.e, on 14.01.1986, no saleable interest was available to be transferred and thus the transfer is void ab initio.

4. On behalf of the claim petitioners, A1 to A5 documents were produced. There was no oral evidence rendered by the petitioners/appellants herein, whereas the process server was examined as RW1. The executing court, on appreciation of the documentary evidence produced on behalf of the claim petitioner and also the evidence of RW1, the process server, held that the transfer is void under Section 64 of the Code of Civil Procedure . Aggrieved, the claim petitioners preferred A.S. No58/2010 before the Principal Sub Court, Thrissur, by judgment dated 14.12.2012, the appeal was dismissed and hence the present appeal.

5. Surprisingly, even after 12 years, the execution second appeal is not admitted by this Court, but an interim order was granted in favour of the appellants, and it continues.

6. Today, when the matter is taken up for hearing, this Court is surprised to note that no substantial question of law was framed for consideration.

7. Heard Sri. M.A Mohammed Siraj, learned counsel appearing for the appellants and Sri. Dinesh Mathew Muricken, learned counsel appearing for the respondents.

8. Though the learned counsel for the appellants attempted to raise the substantial question of law as framed in the memorandum of appeal, this Court is of the considered view that no substantial question of law arises for consideration in the present appeal. An attempt is made on behalf of the appellants to point out that a sale in favour of the decree holder is null and void and therefore, the claim petition under Order 21 Rule 97 ought to have been treated under Section 47 of CPC. This Court cannot subscribe to the aforesaid arguments.

9. Admittedly, going by the records before the executing court, it had come out explicitly clear that the order of attachment was served on the judgment debtor through the process of court on 10.12.1985. The sale in favour of the appellants by the judgment debtor is on 14.01.1986. Thus, the condition under Section 64 of the Code of Civil Procedure is attracted.

10. When a sale is in favour of the appellants is voi