Andhra Pradesh High Court - Amravati
Karri Arjunavathi vs Ginjala Chinna Rao on 1 December, 2022
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.S.A.No.46 OF 2008
JUDGMENT:
The unsuccessful Appellant before both the Courts below filed the present Civil Miscellaneous Second Appeal before this Court.
2. Heard Mr. M.S.R.Subramanyam, learned Counsel for the appellant and Mr. P. Rajasekhar, learned Counsel for the respondents.
3. The appellant filed claim petition in I.A.No.382 of 2003 under Order 38, Rule 8 of The Code of Civil Procedure, 1908 (in short "C.P.C" seeking relief to raise the attachment of the schedule property in I.A.No. 72 of 2003 in O.S.No.20 of 2003 by allowing the claim petition. The 1st respondent filed a suit in O.S.No.20 of 2003 against the respondents 2 and 3 for recovery of the amount of Rs. 73,450/- under the suit promissory note and also attached the immovable property of the respondents 2 and 3 before Judgment in I.A.No. 72 of 2003 and the immovable property, which has been attached is stood in the name of the 3rd respondent and the same has been sold away to the appellant under a Registered Sale Deed dated 10.02.2003. The appellant came to know about the 2 attachment of schedule property at the time of beating tom-tom by the Court Amin.
4. The Trial Court after perusal of Ex.A1 Sale Deed would show that the appellant obtained the Sale Deed from 3rd respondent on 10.02.2003. Ex.B1 would show that the appellant gave an affidavit in I.A.No. 72 of 2003 for attachment of the schedule property before Judgment by alleging that the respondents 2 and 3 are trying to alienate the schedule property to one Mr. Karri Venkataramana @ Yedukondalu, who is none other than the husband of the appellant. Ex.B2 would show that attachment before judgment warrant was issued and the same was affected by Amin under Ex.B3 in the presence of witnesses on 08.03.2003 by intimating the attachment of the property before judgment. Therefore the Trial Court came to conclusion that as on the date of issuing attachment warrant dated 28.01.2003, no Sale Deed was executed in favour of the appellant from the 3rd respondent. But however, as on the date of attachment by Amin i.e on 08.03.2003, the appellant already obtained Registered Sale Deed from 3rd respondent under Ex.A1 dated 10.02.2003. Further the trial court finds that if really the request and registration of a Registered Sale Deed took place on the same day requesting PW-3 to attest the document one day prior to the date of execution of 3 Ex.A1 is highly improbable and would show that Ex.A1 transaction is a collusive to defeat the orders passed by the court below and issuance of Ex.B2 attachment warrant before judgment against schedule property. Therefore the claim was dismissed with costs by the trial court.
5. Assailing the said order, the appellant preferred an Appeal Suit No. 13 of 2006 on the Senior Civil Judge, Yellamanchili and the below appellate court after close scrutiny of the evidence on record and upon perusal of the material on record finds that the respondents 2 and 3 were prohibited and restrained until further orders from transferring or creating charge on the schedule property. The notices in I.A.No. 72 of 2003 was returned as no such addressee was available and subsequently it was again returned with an endorsement that the respondents went to Hyderabad. Ultimately, the attachment was effected on 08.03.2003. In the mean time Ex.A1 Registered Sale Deed was obtained by the appellant on 10.02.2003. Therefore the respondents dodging time with a malafide intention executed the Ex.A1 Registered Sale Deed to the appellant on 10.02.003. Hence Ex.A1 transaction cannot be termed as a bonafide transaction between the parties. Further the below appellate court finds that there is an order of attachment by the court in I.A.No. 72 of 2003 4 dated 24.01.2003, but the same could not be effected till 08.03.2003 due to tactics played by the 3rd respondent and in the meantime 3rd respondent created Ex.A1 Sale Deed in favour of the appellant.
6. Further the below appellate court considered the decisions relied by the respondents in "Tummuri Suryanarayana Vs. Jagatha Seshagiri Rao and Others"1 wherein it was held that when once an attachment order is issued under Section 64 C.P.C private alienation made by the Judgment Debtor is prohibited and if any such alienation is made the same is invalidated. In "T. Surayanarayana Vs. Parachuri Chiranjeevi and Others"2 wherein it was held that once there is an order of prohibiting the alienation after attachment, no alienation is permissible until disposal of the suit. In "Hamda Ammal Vs. Avadiappa Pathar and Others"3 wherein it was held that under Order 38, Rule 5 C.P.C does not apply where the sale deed was also executed by the defendant in favour of third person. It was also held that Section 64 C.P.C bans or prohibits a private transfer or delivery of the property attached and further in "Almelu Ammal Vs. Chinnaswamy Reddiar"4 wherein it was held that the attaching 1 2000(3) ALT 746 2 1996 (2) APLJ 307 3 1990 (II) Law Summary 41 4 1989 AIR (Madras) 311 5 creditor need not file a separate suit under Section 53 Transfer of Property Act to put forth his case that the transfer was in fraud of creditors and that he is entitled to plead by way of defence in the claim proceedings. Therefore considering the all factual aspects, material on record and also case law, which has been elaborately discussed by the below appellate court in right perspective manner and came to a conclusion that there is deliberate act on the part of the parties and brought to the new cause of action in the matter. Therefore dismiss the appeal without costs.
8. As could be seen from Order XXI, Rule 54 of C.P.C substitute the following sub-rule, which reproduced hereunder:-
(a)......
(b) after sub rule (2), insert the following sub-rule, namely:-
(3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2), whichever is earlier".
7. Therefore following the settled law, after perusal of the material on record and close scrutiny of the both the courts below, there are no grounds to interfere with the orders passed by both the courts and that this appeal lacks merits and this Court feels 6 that it is a speculative litigation to gain time only by the appellant with a view to attack the suit claim. Therefore this appeal is liable to be dismissed.
8. Accordingly, the Civil Miscellaneous Second Appeal is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________ DR.K. MANMADHA RAO, J Date: 01.12.2022 KK 7 THE HON'BLE DR. JUSTICE K. MANMADHA RAO C.M.S.A.No.46 OF 2008 Date: 01.12.2022 KK