Back
SUPREME COURT OF INDIA
K.N.Saikia : N.M.Kasliwal : T.K.Thommen
Hamda Ammal
Versus
Avadiappapathar
Case No. : 110 of 1984
Date of Decision : 11/7/90
Advocates Appeared: Bhat K.N. : Bhatt K.N. : Choudhary K.R. : Raghuraman M. : Sampath A.T.M. : Sitaramiah C. : Thananjayan S.
Civil Procedure Code,1908 - Order XXXVIII Rule 5 Registration Act - Section,49 - Transfer of Property Act - Section54 - Sale Of Property - Private transfer - Civil by special leave is directed against judgment of High court Judicature at Madras - This case raises short but an important question of law - Court would narrate only such facts of case which are necessary for disposal of question of law raised in case - Appellant purchased suit property from respondents hereinafter referred to as vendors by sale deed executed in her favor - Got sale deed registered Before registration of sale deed respondent filed money suit for recovery against vendors and obtained attachment before judgment of property in question - Subsequently aforesaid money suit filed by was also decreed in his favor – Held, Counsel for respondent also placed reliance on in support of his contention - Above authorities no doubt support contention of counsel for respondent but above Patna case has been dissented in later Patna case - In later case facts were that deed of in respect of certain property was executed which required registration but before deed was registered property was attached and document was subsequently registered - It was that document prevailed against attachment as document when registered took effect from date of execution - Only reason given in above cases relied on by counsel for respondent was that right to have sale deed registered is benefit which could not in law be availed of after attachment order has been made - Any act done after attachment order purposes of giving effect to transfer sought to be made must be held to be ineffective in law - Sale deed could not be operative unless it was registered and right to have it registered was right denied to parties to sale by reason of attachment - Court have already given detailed reasons for view taken by us and above cases taking contrary view do not lay down correct law - May also be mentioned that apart from later Patna view Nagpur High court in also have taken view now taken by us - Court do not want to burden this judgment by referring to some other cases of High courts which have been cited by counsel for respondent as same do not deal with question directly raised in case before us - Those are cases either Provincial Insolvency Act or Mohammedan Law of Pre emption - Court may however make mention case of Privy council in which supports view taken by us - In above case Hindu executed deed of gift of part of his immovable property and delivered it to do nee - On following day he adopted son - Three days later deed was registered - It was that gift was valid against adopted son - On delivery of deed to do nee there was an acceptance of transfer within Transfer of Property Act thereupon gift became final subject to its registration as required – Appeal allowed
A sale deed executed in favor of a vendee prior to attachment before judgment of the property, but registered thereafter, prevails over the attachment and confers valid title upon the vendee as against the attaching creditor (and any auction purchaser in execution of the decree obtained by such creditor), since: (i) a sale of immovable property is complete on execution of the deed (with consideration), subject only to mandatory registration; (ii) under Section 47 of the Registration Act, a registered document of such nature takes effect/operates/relates back from its date of execution (and not registration); (iii) Order XXXVIII Rule 10 CPC expressly protects pre-existing rights of persons not parties to the suit from the effect of attachment before judgment; (iv) Order XXXVIII Rule 5 CPC applies only where a defendant is about to dispose of property with intent to obstruct execution of decree, not to a completed prior sale; and (v) Section 64 CPC voids only private transfers or delivery of interest after attachment, but submission for registration of a pre-existing executed sale deed is neither a transfer nor prohibited/delivery by the order of attachment. (!) (!) (!) (!) (!) (!) [1000298430003][1000298430012][1000298430016]
Judgment
N.M.KASLIWAL, J.
(1) THIS Civilby special leave is directed against the judgment of High court of Judicature at Madras dated 24/12/1982. This case raises a short but an important question of law. We would narrate only such facts of the case which are necessary for the disposal of the question of law raised in the case. The appellant Hamda Ammal purchased the suit property from the respondents Govindraju Pathar, Muthulinga Asari and Gurusami Pathar (hereinafter referred to as the vendors) by a sale deed executed in her favour on 9/09/1970. Harnda Ammal got the sale deed registered on 26/10/1970. Before registration of the sale deed, respondent Avadiappa filed a money suit for the recovery of Rs. 5,200.00 on 13/09/1970, against the vendors and obtained attachment before judgment of the property in question on 17/09/1970. Subsequently the aforesaid money suit filed by Avadiappa was also decreed in his favour. The question which calls for consideration is whether Hamda Ammal is entitled to the property sold in her favour by virtue of sale deed dated 9/09/1970 but registered subsequently on 26/10/1970, or Avadiappa has a better claim to the property on account of an attachment before judgment made on 17/09/1970 in the suit filed by him on 13/09/1970 i.e. prior to the date of registration of sale deed in favour of Hamda Ammal
(2) IN order to decide the above controversy we would advert to some relevant provisions. Order XXXVIII Rule 5 Civil Procedure Code which provides the . conditions for attachment before judgment reads as under:
"5.(L) Where at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,
(A) is about to dispose of the whole or any part of his property, or
(B) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2 The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3 The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4 If an order of attachment is made without complying with the provisions of sub-rule (1 of this rule, such attachment shall be void."
The above provision itself makes it clear that the attachment before judgment would be made where the court is satisfied that the defendant 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 jurisdiction of court with the intention to obstruct or delay the execution of any decree that may be passed against him. Thus this provision would not apply where the sale deed has already been executed by the defendant in favour of a third person. A transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made with the intention to obstruct or delay the execution of any decree. It would be a different case altogether if a creditor wants to assail such transfer by sale under S. 53 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) on the ground of a fraudulent transfer. Such suit would be decided on totally different considerations in accordance with the provisions of S. 53 of the Act. Order XXXVIII Rule 10 Civil Procedure Code reads as under:
"10. Attachment before judgment shall not affect the rights, existing prior to the attac
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
