Karnataka High Court
Kanthilal vs Smt. Padma Maiya And Others on 18 January, 1999
Equivalent citations: ILR1999KAR2114, 1999(3)KARLJ193
JUDGMENT
1. The auction-purchaser of the property concerned in execution in Execution Case No. 495 of 1985 on the file of the City Civil Court at Bangalore, is the appellant. The appellant is aggrieved by the allowing of I.A. 8 filed under Order 21, Rule 97 and Section 47 of the CPC and declaration that the sale in favour of the auction-purchaser held and confirmed, is declared to be null and void and not binding on the applicant third party purchaser and also the cancellation of the sale certificate issued in favour of the auction-purchaser by the Court.
2. An interesting question has been raised in this appeal as to whether title goes to the Court auction-purchaser in execution sale or to a third party private purchaser, who during the pendency of the proceedings, purchased the property.
3. The admitted facts are as follows: The third respondent herein, who is the decree-holder, filed O.S. No. 2048 of 1982 against the second respondent who is the judgment-debtor. The property involved in the appeal which can be referred to as the schedule property was attached under Order 38, Rule 5 of the CPC, before judgment. The suit was decreed in execution for recovery of money; EP 495 of 1985 was filed and the property was again attached. The property was brought to sale in the Court auction sale, the appellant's bid for Rs. 1,45,000/-, being the highest was accepted, and on paying the entire amount, sale was confirmed, sale certificate was issued and the sale certificate was also registered before the Sub-Registrar under Receipt No. 2571. The third respondent-decree-holder, obtained payment of the decreed amount and petition for delivery by auction-purchaser under Order 21, Rule 95 was filed, delivery warrant was issued. In the meantime, the first respondent claiming to be the private purchaser of the property, filed four I.As. namely, 6, 7, 8 and 9, for various reliefs. I.A. 8 filed under Order 21, Rule 97 was allowed, cancelling the sale certificate, and I.A. 9 under Order 21, Rule 90 was dismissed. I.A. 7 was for recalling the delivery warrant and I.A. 6 for early hearing. In view of the orders in the later I.As. they had been infructuous. Immediately, the present R.F.A. is filed against the orders passed on I.A. 8. Earlier the appeal was allowed and impugned orders on I.A. 8 was set aside following the judgment of the Supreme Court in Silverline Forum Private Limited v Rajiv Trust and Another. Later C.P. was filed for review and the same was allowed and the appeal was restored. Now it is heard afresh.
4. The series of events can be understood by referring to the dates themselves, which are as follows:
16-7-1982 O.S. No. 2048 of 1982 was filed; ABJ was affected;
31-5-1983 Suit was decreed;
8-6-1984 E.P. 495 of 1984 filed;
1-12-1984 Property was attached again in E.P.;
19-4-1985 Advocate filed Vakalath for J.D.;
4-7-1987 After proclamation, sale warrant issued;
30-1-1988 Auction sale held;
1-2-1988 Sale amount deposited by the auction-purchaser;
26-2-1988 Sale confirmed;
Auction-purchaser was directed to file stamp paper for certificate;
14-3-1988 Sale certificate issued;
19-3-1988 Sale certificate registered;
28-3-1988 Payment out of the decretal amount ordered;
20-7-1988 Auction-purchaser files application under Order 21, Rule 95;
3-9-1988 Delivery warrant issued and case adjourned to 26-11-1988;
11-10-1988 I.As. 6, 7, 8 and 9 filed;
4-1-1996 I.A. 8 allowed;
5-2-1996 R.F.A. filed;
17-12-1996 Appeal was admitted and interim order of stay granted;
6-10-1998 Appeal allowed;
5-11-1998 C.P. No. 707 of 1998 allowed;
19-11-1998 C.P. allowed and appeal restored.
5. The case of the applicant before the Trial Court was that first he wanted obstruction of delivery of possession of the immovable property is to be noted. Then a prayer for setting aside the auction sale was on tbe following terms:
The decree-holder in O.S. No. 2048 of 1982 filed Execution Case No. 1151 of 1983, which was dismissed on 26-11-1983. Another Execution Petition No. 495 of 1985 was filed and the same also was dismissed on 30-6-1984. But later it was restored and an order was made for attachment of property and accordingly, attachment was made on 26-11-1984; attachment is not in accordance with law. The execution petition was dismissed on 7-9-1985 and after two days on 9-9-1985 the decree-holder made an application for setting aside dismissal. Notice was ordered to the respondent, but as the decree-holder did not take any step, execution petition was rejected on 6-12-1986. Again at the request of the decree-holder, the execution petition was restored, instead of restoring I.A. 1. Thus, the order of restoration is illegal and contrary to the earlier order dated 9-9-1995, this was resulted because of misrepresentation and fraud played by the decree-holder. However, the case was proceeded with and the property was sold on the spot on 23-1-1988 and in Court on 30-1-1988. The auction-purchaser who is the brother of the decree-holder, applied for delivery of possession and delivery warrant has been issued.
6. The third party applicant who is the purchaser of the suit property under a registered sale deed dated 12-6-1986, who is in possession and enjoyment of the same and wanted to put up a residential building and applied to the Corporation and only at that time he applied for encumbrance certificate. From the same he came to know that there was a Court sale on 19-3-1988 and then only on enquiry through their Advocate learnt about these facts stated supra on 7-10-1988 and consequently the present application came to be filed. It was contended that the sale held and confirmation thereof are illegal, void and violative of the mandatory provisions of the CPC. The attachment was not effected as provided under Order 21, Rule 54(2) of the CPC. There was no beat of tom tom near the suit property nor any affixture of the copy of the warrant, of the schedule property. A mahazar said to have been written on 26-11-1984 by the Bailiff does not contain the signatures of the three respectable inhabitants of the locality. It was further contended that the alleged attachment of the property has no effect as execution petitions were subsequently dismissed on 7-9-1985 and 6-12-1986 under an earlier decision on 30-6-1985. Even attachment of the judgment is deemed to have ceased as there was no order for continuation of attachment before judgment; when the petitioner purchased the property on 12-6-1986, there was no attachment of the said property by the Court and hence there was no prohibition for sale. Proclamation has not been done in accordance with the mandatory provisions of the CPC contained in Order 21, Rules 54 and 66 of the CPC for the reason that proclamation was not in Kannada language. Copy of the sale proclamation was not affixed to the schedule property or to the door of the judgment-debtor. No verified statement was filed before the settlement of sale proclamation, but only an affidavit was filed. The value of the property has been mentioned about Rs. 90,000/- in the application dated 21-3-1987, which is less than the value mentioned in 1984 in the attachment list. The execution case filed did not disclose the sale in favour of the applicant dated 12-6-1986, which is a false execution case. Thus, the decree-holder has played a fraud upon the Court. The sale in favour of the judgment-debtor has been suppressed by the decree-holder intentionally. The judgment-debtor has no saleable interest on the date of sale. The sale proclamation was not affixed on the notice board of the Court. The judgment-debtor also colluded with the decree-holder and have played a fraud. The applicant is in possession of the schedule property since 12-6-1986 and has put up a watchman shed and fenced the property. If the sale is not set aside, then substantial injury and loss will be caused to the applicant.
7. The auction-purchaser opposed these applications as follows:
The applications are not maintainable under the provisions of law stated therein. The applicant is not a party of the execution petition and has no locus standi to file the application. The application is barred by limitation under Article 127 of the Limitation Act, which are filed after 280 days from the date of sale. Sale Certificate has been already granted to the auction-purchaser under Order 21, Rule 94 of the CPC and is registered on 19-3-1988. Thus, he has become the absolute owner of the property. Hence, the application under Order 21, Rule 90 is not maintainable, which cannot be invoked after confirmation of sale. Section 47 of the CPC cannot be invoked by strangers that too after confirmation of sale and issue of sale certificate. The property was attached before judgment in O.S. No. 2048 of 1982 and execution petition was filed for recovery of the decretal amount. Again the property was attached subsequently and the judgment-debtor was served with the notice. He appeared before Court through his Counsel, but failed to pay the amounts. Hence, the property came to be sold. The encumbrance certificate issued by the concerned authority did not disclose any sale or encumbrance. The application is vague and absurd and is filed in collusion with the judgment-debtor. The petitioner purchased the property knowing fully well that the property is subject-matter of the attachment and is likely to be sold in the execution of the decree and kept quite till the confirmation of sale. If she has purchased, she can file a suit against the judgment-debtor and recover the consideration amount paid by her. The sale is valid, legal and binding the judgment-debtor and its representatives which is in accordance with law and there is no material irregularity committed in conducting the same. There was proper attachment, proclamation and sale of the property. The property was subject to charge and sale, pending execution petition and thus is hit by doctrine of lis pendens. If the encumbrance certificate disclosed sale in favour of this applicant, possibly auction-purchaser would not have purchased this property parting with hard earned money. It is very much possible that the applicant could have bribed the Sub-Registrar and got the sale registered antedated during 1986, though in fact it might have been registered in 1988 after confirmation of sale. The schedule property is a vacant site and is not in possession of the applicant. Before filing the application, the applicant built a shed overnight, which was not at all there upto 7-10-1988.
8. The points for determination raised by the Trial Court are as follows:
1. Whether the applications under Order 21, Rule 90 of the CPC and Order 21, Rule 97 of the CPC read with Section 47 are not maintainable under law?
2. Whether the applications are barred by limitation?
3. Whether the applicant was the owner of the schedule property, as on the date of sale?
4. Whether there was any fraud or irregularity in conducting the sale of the schedule property?
5. Whether the sale has to be set aside?
9. The Trial Court answered the points as follows:
1. Partly in the affirmative, in respect of I.A. under Order 21, Rule 90 read with Section 47 of the CPC.
2. I.A. under Order 21, Rule 90 is barred.
3. In the affirmative.
4. In the affirmative.
5. In the affirmative.
10. So far as the application under Order 21, Rule 97 of the CPC is concerned, the Trial Court following the dictum in M/s. Paramound Industries and Metal Finishers v Smt. C.M. Malliga, the application is maintainable notwithstanding the fact that it is filed only under Order 21, Rule 95 and it shall be deemed to be an application under Order 21, Rules 98 and 103 of the CPC. However, the Court held that application under Order 21, Rule 90, may not be partly maintainable, but only the application under Section 47 as well as the application under Order 21, Rule 97 alone are maintainable. Holding that under Order 21, Rule 90, on the questioning of a fraud and irregularity in conducting the sale is barred under limitation, but not the application under Section 47 and also under Order 21, Rule 97. Holding that there has been a valid sale in favour of the applicant on 12-6-1986, much before the sale held by auction, through process of Court, the Trial Court allowed the application. It further held that attachment is deemed to be ceased under Order 21, Rule 54(2). Thus it is held that the alienation in favour of the applicant during the period between the dismissal of the execution petition and restoration is not affected. It also held that there is irregularity and fraud in conducting the sale and therefore there is no necessity to set aside the sale and the same is null and void ab initio, notwithstanding the fact that the sale was questioned after a period of eight months.
11. It is contended before me in the memorandum of grounds by the appellant that the application under Order 21, Rule 97 is not maintainable. The learned Judge has totally ignored the provisions of Order 21, Rule 102 which states that nothing in Rules 98 to 100 of Order 21 applies to obstructions or resistance in a execution of a decree for possession of immovable property by a person to whom the judgement-debtor has conveyed the property after institution of the suit. The said provision of law clearly demonstrates that any transfer made during the pendency of the suit is null and void and as such transferee pendente life cannot obstruct or resist the execution proceedings by filing an application under Order 21, Rule 97.
12. The lower Court ought to have appreciated that materials available before the Court clearly demonstrated that to defeat the decree passed in O.S. No. 2045 of 1982, the sale deed has been created, and no consideration was paid by the first respondent to the second respondent, and even if consideration is paid, then also the first respondent who is the transferee pendente lite does not get any title over the said property. The Trial Court has no jurisdiction under Order 21, Rule 97 to cancel the sale certificate issued by the competent Court of law, when there is no irregularity or fraud. The relevant provision of law is Order 21, Rule 90 and the sale certificate can be cancelled only in the manner and the mode prescribed there under Order 21, Rule 90 and it cannot be cancelled under Order 21, Rule 97 of the CPC. The Trial Court should have appreciated that it is the respondents 1 and 2 who have colluded with each other to play fraud on the Court and respondent 1 is no other person than benami of the second respondent and he had obstructed the execution proceeding at the behest of the judgment-debtor, against whom the decree has been passed and the same has become final. The learned Judge should have appreciated that the first respondent in the cross-examination admitted that no such consideration was paid and the sale deed has been executed without payment of any money. Further witnesses also admitted that she had no money to pay the sale consideration to purchase the property. In such circumstances, no importance should have been given to the sale deed. It is also necessary to point out that encumbrance certificate which was obtained at the time of auction proceeding, did not show the alienation in favour of the third party Smt. Padma Maiya.
13. The further grounds urged are:
a. The learned Judge should have appreciated that auction-purchaser has purchased the property through the Court. If the auction-purchaser would have known that the very Court which is auctioning the property is likely to set aside the sale certificate in the future, he would not have purchased the property and invested his hard earned money in purchasing litigation. Merely because a person files an application under Order 21, Rule 97 and produces some documents which are concocted and fabricated to defeat the ends of justice, Court should not have looked into the same and on the basis of such fabricated documents genuine auction-purchaser should not have been put into doldrums.
b. The learned Judge should have appreciated that judgment-debtor has played fraud on the Court. To defeat the decree passed against him, knowing fully that the impugned property has been attached by the Court before execution and after execution proceedings, deliberately created the documents and vanished in the blues and his benami person appeared before the Court under the pretext of transferee pendente lite and claims ownership over the property and the learned Judge confirms his title which has been created to defeat the decree and cancel the sale certificate executed in favour of bona fide purchaser of the property.
c. The learned Judge should have appreciated that auction-purchaser has paid money and deposited the same in the Court to purchase the schedule property, whereas the respondent 1 has sale deed in her possession and admits that she has not paid any sale consideration; in such circumstances the Court should have rejected the application filed by the respondent 1 and allowed the application filed by the auction-purchaser under Order 21, Rule 95 of the CPC by issuing the delivery warrant and should not have cancelled the sale certificate issued in favour of auction-purchaser.
d. The learned Judge should have appreciated that majesty of the Court is supreme. During pendency of the litigation, if any property is being sold to defeat the justice such transfer should be presumed as null and void; more so when Transfer of Property Act clearly contemplates that any transfer which is made to defeat the creditor is null and void.
e. The learned Judge should have appreciated that auction-purchaser has invested his hard earned money of Rs. 1,45,000/- in the year 1988 to purchase the schedule property and out of said money substantial amount has been paid to the decree-holder. For no fault of auction-purchaser, auction-purchaser cannot be called upon to under-go losses, Section 645 of the CPC is very clear and any property which has been attached, cannot be sold by the de-
fendant/judgment-debtor and if it is sold, it does not confer any title on the purchaser of the property.
14. Apart from memorandum of grounds, Mr. Paras Jain, appearing for the appellant submitted that Silverline Forum Private Limited, supra, is an answer to the objection raised by the other side. Section 64 of the CPC makes private alienation of property after attachment as absolutely void and purchaser's title is held supreme under Section 65 of the CPC. In M/s. Supreme General Films Exchange Limited v His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others , the doctrine of lis pendens was made applicable to execution proceedings. Order 21, Rule 83 enables the judgment-debtor to sell the property in private with the prior permission of the Court. Order 21, Rule 89 contemplates setting aside the sale after payment of the sale amount into Court, along with 5% solatium. Order 21, Rule 90 is the only provision to set aside the sale and once the order has been passed on Order 21, Rule 92 confirming the sale, the sale had become absolute. Once the sale certificate has been issued pursuant to the sale certificate, delivery warrant has also been issued that the sale certificate is the document of title. Once the application under Order 21, Rule 90 has been dismissed, and the sale certificate issued, the absolute title is vested with the auction-purchaser and he becomes the absolute owner of the property. In such circumstances, Order 21, Rules 98 and 100 cannot be invoked by transferee pendents life. In fact, Order 21, Rule 100(2) is very clear that the transferee has no role to play and if at all he obstructs, he has to be sent to prison, under Order 21, Rule 98(2) of the CPC.
15. On the other hand, Mr. Gangadhar Aithal, learned Counsel for the respondent 1 submitted as follows: The first respondent in the appeal submits that she has purchased the property involved in the above appeal from second respondent under a registered sale deed dated 12-6-1986 who was the judgment-debtor before the Trial Court. The registered sale deed is marked as Ex. P. 2. As on the date of sale of the property by the second respondent in favour of the first respondent, there was no subsisting attachment of the said property as has been categorically held by the learned Civil Judge. The decree-holder, third respondent, had obtained an order of attachment before judgment in O.S. No. 2042 of 1982, but as a matter of fact, the attachment before judgment was not effected by following the procedure as contended by the first respondent before the Court below. But the Court below has not adverted this contention of the first respondent. But, however, the Court below has given a declaration to the effect that the sale of the said property by auction is not binding on the first respondent as the first respondent is a transferee of the said property from the second respondent for valuable consideration when there was no subsisting attachment of the said property by the Court below, in view of the fact that there was no order passed in the execution petitions filed by the third respondent-decree-holder directing the continuation of attachment of the said property. When the said execution petitions were dismissed for default of the decree-holder, as provided under Order 21, Rule 57, with Karnataka Amendment of the CPC, the learned Civil Judge has categorically held that there was no attachment of the said property as on the date of the public auction of the same and as such the sale of the said property in favour of the appellant on 30-1-1988 by Court auction was null and void and as such the appellant shall not get any right, title or interest over the said property. This finding of the learned Civil Judge is just and proper. The learned Civil Judge has also relied upon the ruling of this Court in Byrappa (deceased) by L.Rs v S. Mani and Others. From the facts narrated by the Court below in the order, it is clear that there was no legal impediment for the first respondent to purchase the said property as on the date of the sale deed, Ex. P. 2, as the date being 16-6-1986, in view of the fact that the attachment of the said property by the Court below ceased to exist or to operate on the dismissal of the earlier execution petition for default on the part of the decree-holder and as there was no subsequent attachment of the said property by the Court below.
16. The decree-holder has also played a fraud on the Court by producing a false encumbrance certificate issued by the Sub-Registrar at the time of issuing sale proclamation on the Court below, in which there was no entry in respect of the sale of the said property on 12-6-1986 by the judgment-debtor in favour of the petitioner. In view of this deliberate fraud played by the decree-holder, who is none other than the brother of the appellant auction-purchaser, the sale of the said property in favour of the appellant is rendered illegal.
17. Subsequent to the purchase of the said property, the first respondent has got the khata of the same in her favour and has constructed a pucca RCC structure on the said property by obtaining the plan and licence from the competent authority, subsequent to the order passed by the Court below which is impugned in this appeal.
18. The contention of the appellant that the resistance by the first respondent for delivery of possession of the said property by the Court below to the appellant by filing applications under Section 47 read with Order 21, Rule 90 of the CPC is hit by the provisions of Order 21, Rules 98 and 100 and 102 of the CPC, is itself incorrect. The provisions of the said rules are not applicable to the instant case, as the said property was not the subject-matter of the suit itself which was filed by the decree-holder for recovery of money against the second respondent and in the said suit, the property was attached before judgment by the Court below and it was an attachment simpliciter ceased to exist on the dismissal of the execution petitions for default of the decree-holder, as categorically held by the Court below in the order, and also as there was no order admittedly under Order 21, Rule 57 of the CPC for the continuation of the attachment when the earlier execution petitions were dismissed for default of the decree-holder.
19. He also relied upon the dictum in Byrappa's case, supra, which I shall refer to later. Therefore, the question to be considered in this appeal is: Whether the Court auction sale can be set aside at the instance of a third party purchaser who purchased the property after a money decree against the erstwhile owner and attachment of the property by Court?
20. The sale of any property immovable in execution of a decree for money is governed by the provisions of Order 21, Rule 54 to Order 21, Rule 106 of the CPC. These are the specific provisions for sale and for setting aside the sale. Section 47 of the CPC relates to questions to be determined by the Court executing the decree. It contemplates that all questions relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree. An explanation to the section has been amended after 1976. Explanation 3(a) speaks as follows:
"For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed".
Explanation (b) also is relevant in respect of the sale of the property.
"(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section".
Explanation prior to the amendment stood as follows:
"For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit".
The Explanation 3(a) and (b) makes it clear that delivery of possession shall be considered to be questions relating to the execution, discharge and satisfaction of the decree within the meaning of the section. Therefore, setting aside such sale or questioning the validity of the sale is not contemplated either under the main section or under the explanation. Whenever a specific provision has been made under the Code, any other provision cannot be extended or interpreted to substitute itself in the place of that section which is meant for that particular purpose. We have specific provisions under Order 21, Rules 89 and 90 of the CPC to set aside the sale. Therefore, a sale cannot be set aside under Section 47 alone. Therefore, the attempt made by the Trial Court to set aside the sale and to ignore the same under Section 47 of the CPC is not valid, in the eye of law.
21. The Supreme Court has considered the scope of Section 47 and observed in Harnandrai Badridas v Debidutt Bhagwati Prasad, as follows:
It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind. App. 54 : AIR 1917 PC 121, there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separate suit".
In that case the question that arose regarding the delivery of possession and the question regarding the validity of the sale was not involved. Therefore, the question of validity of sale, in my opinion, cannot be gone into. In fact, it was seen there that as soon as the judgment-debtor's property sold in auction and the decretal amount realised by the decree-holder, the decree stands satisfied. But the further view "that after that stage there can be no scope for any question arising as to the execution, discharge or satisfaction of the decree, the question whether the auction-purchaser gets possession of the property, is the matter which has nothing to do with the question of satisfaction of the decree. Though the later part was made clear by the Supreme Court, the Supreme Court has not attached the possession as to whether the same can be questioned merely under Section 47 alone.
22. The application is filed under Order 21, Rule 97. Admittedly, the application under Order 21, Rule 90 read with Section 47 has been dismissed. To get over the mandatory provision of Section 47, the petition is filed under Section 47 read with Order 21, Rule 97 of the CPC. The order under Order 21, Rule 90 dismissing the application, namely, I.A. 9, has become final and no appeal has been filed against the same.
23. Order 21, Rule 97 of the CPC speaks about resistance or obstruction, possession of immovable property, and under sub-rule (2), the Court is called upon to adjudicate upon the application in accordance with the provisions herein contained. The answer to the application is found in the dictum available in Jesaraj Ghasimal Betal v Ahammad Hussain. In fact the argument is that the applications are not maintainable in view of the clear provision under Order 21, Rule 102 of the CPC. Order 21, Rule 102 of the CPC reads as follows:
"Rules not applicable to transferee pendente lite.--Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person".
The dictum of the Supreme Court in Silverline's case, supra, it is held as follows:
"A third party to the decree who offers resistance or obstruction to execution of the decree would fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if transferee pendente life of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point, the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act".
This decision is directly on th.e point and following this dictum alone, the appeal has to be allowed. However, in view of the other points raised, I am dealing with them also.
24. The question that has been raised was that the property attached before judgment need not be attached again. While the appellant argued in favour of the above provision, the respondent argued contra. Order 38, Rule 11 reads as follows:
"Property attached before judgment not to be re-attached in execution of decree. Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property".
25. It is contended that the attachment ceases to operate and on dismissal of the execution petition, the attachment ceased. Further, Order 21, Rule 57 was relied upon, which is to the following effect:
"Determination of attachment.--(1) Where any property has been attached in execution of a decree and the Court for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period upto which such attachment shall continue or the date on which such attachment shall cease".
26. A reading of Order 38, Rule 11 and Order 21, Rule 57 of the CPC would make a difference between an attachment before judgment and attachment in execution. The learned Counsel however relied upon the dictum in Byrappa's case, supra, wherein a Single Judge of this Court has held as follows:
"The words "where any property has been attached in execution of a decree" in the rule should not be interpreted too literally. They have to be understood as referring to an attachment in enforcement of which the decree could be executed and in the case of an attachment before judgment it is that attachment which assumes the character of an attachment in execution of a decree and so becomes capable of enforcement in an execution proceeding.
The rule thus governs not only an attachment made in execution proceedings but also an attachment before judgment. Whether, therefore, it is an attachment before judgment which becomes an attachment in execution or whether it is an attachment made in execution proceeding that attachment ceases to subsist under the rule when on execution, application is dismissed for decree-holder's default".
This ruling came to be delivered prior to the amendment Rule 11-A of Order 38 was introduced by Amendment Act 104 of 1976, which reads as follows:
"11-A. Provisions applicable to attachment.-
1. The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11.
2. An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored".
Similarly Order 21, Rule 57 of the CPC also was amended with Kar-nataka Amendment added at the end reading "unless otherwise specifically ordered". By virtue of the amendment to Rule 11-A, it is made clear that it applies only to a suit which is dismissed for default otherwise it shall continue and in execution property need not be attached for the second time, once attachment is made absolute at the time when the decree is passed in a money suit. Therefore, Order 21, Rule 57 will not come to the aid of the respondent, and the dictum relied upon cannot be considered as a good law in view of the amendment by Act 104 of 1976, introducing Order 38, Rule 11-A.
27. The dictum in S. Noordeen v V.S. Thiru Venkita Reddiar and Others, speaking about attachment before judgment, expressed the view "the attachment before judgment is an encumbrance preventing the owner of the property to create encumbrance, sale or charge thereon. Attachment before judgment does not create any right, title or interest, but it disables the judgment-debtor to create any encumbrances. Ultimately, if the decree is passed the property forms part of the decree so as to enable the decree-holder to proceed against the property to realise the decree debt. The decree-holder is entitled to proceed against those items mentioned in the petition. The decree would be executed as provided in other mode of the decree, in other words, attached properties are also liable to be sold, as integral part of the decree.
28. In the light of the above dictum, it cannot be said that further attachment in execution is necessary. The power of the Trial Court is certainly superior till that of the executing Court, as the latter merely carry out the order or decree of the former Court. Once it is seen that 110 further attachment is necessary, for bringing the property to sale in execution, the attachment effected, even if it is so, is only redundant. If at all the redundant attachment will alone go with the dismissal of the execution application. But the earlier attachment before judgment subsists for ever. Order 21, Rule 58 of the CPC does not give the power to the executing Court to annul the attachment made by the Trial Court, a fairly superior Court and the executing Court has no jurisdiction even to go into attachment made before judgment by the decree Court and in the light of the above dictum, the attachment and the property, once form into an integral part of the decree, the executing Court cannot go beyond the decree at all. That being the settled law, the argument of the learned Counsel for the respondent that attachment ceased cannot be entertained nor such finding rendered by the execution Court can be sustained. Therefore, that finding regarding the validity of the attachment is set aside and the attachment before judgment is held to be valid.
29. The next question raised is whether the purchase of the property by the third party purchaser after the decree and before the satisfaction of the decree in execution will amount to lis pendens?
30. In the light of the previous decision referred to above, once the attachment has been made part of the decree, as per Noordeen's case, supra, it can be safely said that the purchase is hit by lis pendens and not valid in the eye of law at all. This question has been answered in various decisions of the Supreme Court in M/s. Supreme General Film's case, supra. The question was that the theatre in question was attached in execution of the decree against the owner of the theatre. The lease of the theatre executed in favour of a company during attachment was struck down by the doctrine of lis pendens and also by the provisions of Section 64 of the CPC, the Supreme Court held "we think that it purported to create entirely new rights pendente life. It was, therefore, struck by the doctrine of lis pendens, as explained by this Court in Jayaram Mudaliar v Ayyaswami, embodied in Section 52 of the Transfer of Property Act. As regards the applicability of Section 64 of the CPC, the Court found "we are therefore unable to hold that the concurrent findings of the Trial Court and the High Court that the Plaza Talkies was attached in execution of the decree in Suit No. 3-B of 1952 on 4-5-1955 and this attachment was in existence on 30-3-1956 are erroneous. On this finding the lease of 1956 was certainly struck down by the provision of Section 64 of the CPC. Section 64 of the CPC in fact constitutes an application of the doctrine of lis pendens in the circumstances specified there". Therefore, there can be no difficulty in holding that the principle of lis pendens is applicable to the facts of the present case as well as admittedly the third party has purchased the property after the attachment of the judgment has been made by the Trial Court and even after attachment in execution, though the later is disputed.
31. So far as the validity of the sale certificate issued by the Court to the auction-purchaser in execution of the decree who purchased the property in execution of the decree, the Supreme Court has held in P. Udayani Devi v V.V. Rajeshwara Prasad Rao, that "the position in law is well-settled that the certificate of sale or documents of title which ought not to be lightly regarded or loosely construed -- Rambhadra Naidu v Kadiriyasami Naicker.
32. The question as to whether a person independently fighting a right as a tenant but by virtue of his purchase of the property under the pre-emption of the decree, his tenancy rights merged into his title as owner deriving right, title and interest from the original owner can re-establish title against auction-purchaser of a property which was the subject-matter of the attachment by way of suit, was answered by the Supreme Court holding that he cannot seek any declaration of his independent title thereof. The Supreme Court in Jangli and Others v Smt. Bhagwati and Others, has observed as follows:
"The question is whether he can challenge the money decree, because of or independently of, pre-emption decree. In our considered view, in either case, he cannot have any declaration of title. As stated earlier, his tenancy rights stood merged in his title after the pre-emption decree and he became the owner. He derived his title from Smt. Ajudhia, who was a judgment-debtor in money decree. He sought to set aside the decree by filing objections under Section 47 and the same was dismissed. Since the property was subject of attachment pending suit, the decree-holders in Suit No. 377 of 1966 became entitled to proceed against the property which was rightly sold in execution. Therein, the eleventh respondent had become the auction-purchaser and the sale was confirmed in his favour. Thus, he acquired the title to the property through the decree-holder. The title of Smt. Ajudhia thus stood transferred to the eleventh respondent through Court decree. The appellant being a derivative title-holder is bound by the decree as judgment-debtor. He cannot seek any declaration of his independent title thereof. He can no longer avail of his tenancy rights which stood merged in his title held under pre-emption decree".
33. The question whether the sale is to defeat the decree or defeat the decree-holder or not is to be considered in this case. Admittedly, the judgment-debtor is aware of the decree and the attachment before judgment and also attachment in execution. He appointed a Counsel to represent him in the execution case as well. Therefore, the transfer is intended in the language of Section 53(1) of the Transfer of Property Act, to defeat or delay the creditors. The Supreme Court in C. Abdul Shukoor Saheb v Arji Papa Rao (deceased) by L. Rs, has held as follows:
". . . . that in the circumstances, it stood to reason that the transferee must be fixed with notice of the design in pursuance of which the transfer was effected. If the object of a transferor who is heavily indebted was to convert his immoveable property into cash for keeping it away from his creditors and knowing it the transferee helped him to achieve that purpose it has naturally to be held that he shared that intention and was himself a party to the fraud. Thus, the transferee was not a transferee in good faith and the transfer was a scheme by the transferor with the knowledge and concurrence of the transferee to put the property out of the reach of the creditors".
34. The same question came to be considered by the Supreme Court in Prasad v V. Govindaswami Mudaliar, to the following effect:
"From the evidence, both oral and documentary and circumstantial, held that the sale deed dated 22nd of August, 1955 was true and it was supported by consideration but only in part and that even the recited consideration in the sale deed was thoroughly inadequate, that the sale deed was executed only nominally for a collateral purpose and with a view to stave off creditors with the express understanding that the properties sold would be reconveyed to the vendors after the pressure of the creditors had subdued. In view of the finding arrived at there was no question of giving any equities to the vendees even if some of the amounts paid by the vendees to some of the creditors of vendor were genuine. As the transaction of sale was itself vitiated for the reason given above, no relief in equity would be granted to the vendees".
35. On facts, the learned Counsel for the appellant relied upon the evidence of the husband of the applicant Smt. Padma Maiya in which there is a clear admission "I have no evidence to show that I had money of Rs. 1,70,000/- except mentioning in the sale deed". Therefore, it is clear that it comes within the dictum of Prasad's case, supra.
36. In the light of the above discussions, I have no hesitation to hold that the private sale embarked upon by the respondent is hit by lis pendens and no title can pass on to the vendor, the respondent herein.
37. Coming to the question as to value a man can attach to the Court auction sale, the Supreme Court considered this aspect in Janak Raj v Gurdial Singh. In that case, the house was sold in execution of the ex parte money, the judgment-debtor did not apply for setting aside the sale under Order 21, Rule 89, but applied for setting aside the decree, the decree was reversed after reversal of application by the auction-purchaser was made under Order 21, Rule 92 for confirmation of the sales the Supreme Court upheld that the sale must be confirmed notwithstanding the reversal of the decree for sale. Of course the Supreme Court confirmed the observation of the Division Bench of the Madras High Court and also held as follows:
"If the purchaser were to lose the benefit of his purchase on the contingency of the subsequent reversal of the decree, there will be no inducement to the intending purchasers to buy at execution sale and consequently the property would not fetch its proper price at such sales, and the net result would be that the judgment-debtor would be the ultimate sufferer. This wise policy of protecting the title of the stranger purchaser, even though in any individual case it may work some hardship, is clearly conceived in the interest of the general body of judgment-debtors so that purchasers will freely bid at the auction without any fear of later objection. But in the case of a decree-holder-purchaser the rule is different and in that case the purchase is subject to the final result of the litigation between the decree-holder and the judgment-debtor.
For the reasons already given and the decisions noticed, it must be held that the appellant-auction-purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment-debtor did not take resort to the provisions of Order 21, Rule 89. The decree was for a small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so".
38. The validity of the sale in favour of the auction-purchaser has also been considered by the Supreme Court in Municipal Corporation of Delhi v Pramod Kumar Gupta, to the following effect:
''An examination of the relevant provisions of Order 21 of the Code of Civil Procedure will show that the title to the property put on auction sale passes under the law when the sale is held. The owners and certain other interested persons are afforded opportunity under the Code to make a prayer for setting aside the sale on enumerated grounds, and after all such matters are disposed of without disturbing the sale, the sale is confirmed under Rule 92. The relevant part of Rule 92 reads as follows:
"92. Sale when to become absolute or be set aside.--(1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute".
The stage of issuing a certificate of sale arises only thereafter, and Rule 94 states:
"94. Certificate to purchaser.--Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall hear date, the day on which the sale became absolute".
It is manifest that the title passes under the auction sale by force of law and the transfer becomes final when an order under Rule 92 confirming it is made. By the certificate issued under Rule 94, the Court is formally declaring the effect of the same and is not extinguishing or creating title. The object of issuance of such a certificate is to avoid any controversy with respect to the identity of the property sold, and of the purchaser thereof as also the date when the sale becomes absolute".
Therefore, the Court auction sale must be respected as against the private sale indulged by the judgment-debtor when the matters are pending and fought tooth and nail by the decree-holder.
39. The dictum relied upon by the learned Counsel for the respondent in Bai Hakimbu and Others v Dayabhai Rugnath, to the following effect:
'"Under Section 53, only a defeated or delayed creditor or a subsequent transferee has the option to impeach the transfer. An auction-purchaser, who is not the decree-holder himself, is not a creditor of the judgment-debtor, and it cannot be said that the transfer was intended to delay or defeat him, since he stepped in after the transfer by operation of law. Nor is he a subsequent transferee within the meaning of sub-section (2). But if a person can prove that he was a creditor and decree-holder of judgment-debtor and that the assignment made by the judgment-debtor intended to delay or defeat him, then the assignment is voidable at his option, though he may subsequently become an auction-purchaser, because a decree-holder does not lose his right to the benefit of Section 53, by himself becoming an auction-purchaser and if the property purchased by him at the auction had been transferred by the judgment-debtor with intent to delay or defeat him, the transfer is voidable at his option".
The decision is not in line with the Supreme Court dicta referred to above and therefore that cannot be followed. In any event, a real reading of the decision will go to show that it is against the very principle argued by the learned Counsel for the respondent.
40. Again the dictum in Bommarayigowda and Others v Kalegowda and Others, referring to Section 53 of the Transfer of Property Act, which is to the following effect cannot be considered to be a good law in view of the Supreme Court dicta referred to above.
"Auction purchaser or his transferee suit to enforce right acquired at Ct. sale. It should be representative.
A purchaser at an execution sale or his transferee cannot be termed creditor of the judgment-debtor and a suit by him to enforce the rights acquired by virtue of the Ct. sale alleging that the settlement deed by the judgment-debtor was executed with intent to defraud the decree-holder need not be a representative one under Section 53. . . .".
41. Again the dictum of the Madras High Court in Kallubandi Nan-jamma v Kethe Rangappa, with reference to Section 53 of the Transfer of Property Act cannot also be considered as a good law in view of the dicta of the Supreme Court.
42. In view of the above facts and legal position, I have no hesitation to set aside the judgment and decree of the Trial Court and allow the appeal with costs. I.A. VIII filed under Order 21, Rule 97 and Section 47 of the CPC is dismissed, with costs.