Andhra Pradesh High Court - Amravati
Nerella Dharmendra vs Sanka Prasad on 14 December, 2021
MVR,J
S.A.No.565 of 2021
1
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.565 of 2021
Between:
Nerella Dharmendra,S/o.Vemulaiah
... APPELLANT
AND
Sanka Prasad, S/o.Narahari Rao and another
... RESPONDENTS
DATE OF JUDGMENT PRONOUNCED :14.12.2021
SUBMITTED FOR APPROVAL
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the order? Yes/No
____________________
M.VENKATA RAMANA, J
MVR,J
S.A.No.565 of 2021
2
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ S.A.No.565 of 2021
% Dated : 14.12.2021
Between:
# Nerella Dharmendra,S/o.Vemulaiah
... APPELLANT
AND
$ Sanka Prasad, S/o.Narahari Rao and another
... RESPONDENTS
! Counsel for appellant : Mr. Raja Reddy Koneti
^Counsel for Respondents : Smt.C.Brahmaramba
<GIST :
>HEAD NOTE:
? Cases referred:
1. AIR 2014 Supreme Court 1356
2. 2004(5) ALD 82
3. (2009)7 SCC 363
4. 2021 Supreme (Madras) 872
5. 2021(1) CTC 830
6. AIR 1939 Mad 702 = (1939)2 M L J 822
____________________
M.VENKATA RAMANA, J
MVR,J
S.A.No.565 of 2021
3
HON'BLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.565 of 2021
JUDGMENT:
The appellant instituted E.A.No.133 of 2014 in E.P.No.6 of 2014 in
O.S.No.62 of 2010 on the file of the Court of learned Senior Civil Judge,
Mangalagiri, against the respondents.
2. The first respondent was the decree-holder in E.P.No.6 of 2014 in
O.S.No.62 of 2010 and the second respondent was the Judgment-debtor
therein.
3. E.P.No.6 of 2014 in O.S.No.62 of 2010 was filed in execution of the
decree in the suit and mode of execution sought is by sale of the E.P.
schedule property.
4. Smt.Thunuguntla Swaroopa Lakshmi is the sister of the second
respondent. The appellant had purchased 'A' schedule property mentioned
in his claim petition from Smt.Thunuguntla Swaroopa Lakshmi along with
other properties under a registered sale deed dated 29.01.2011. According
to the appellant, this sale deed was preceded by a registered agreement
for sale dated 31.07.2010.
5. The first respondent got E.P. schedule property attached before
judgment in I.A.No.824 of 2020 in O.S.No.62 of 2010 and it was effected on
13.05.2020.
6. Contending that sale of the property purchased by him from the
sister of the second respondent in Court auction is proper and legally
tenable, since it exclusively belonged to his vendor, the appellant
requested to raise attachment in terms of Order XXI Rule 58 CPC in his
claim petition in E.A.133 of 2014. His further contention before the
executing Court was that the second respondent and his vendor
MVR,J
S.A.No.565 of 2021
Smt.Thunuguntla Swaroopa Lakshmi had entered into a relinquishment
deed dated 29.04.2010 whereby his vendor was given the property, which
is subject matter of sale in the execution petition. According to him, this
property could not have been attached since it belonged to his vendor
exclusively, over which the second respondent has no right or interest and
which cannot be sold in execution of the decree. Asserting his exclusive
right, title and interest to this property, the appellant required the
executing Court to declare that he is the absolute owner of this property
with which the second respondent has no concern and raise the
attachment.
7. The first respondent - decree-holder resisted his claim on several
grounds, particularly questioning the alleged sale in favour of the
appellant, not only as an outcome of collusion but also on account of the
collusion between the second respondent and his sister, who brought out a
registered relinquishment deed. The main defence of the first respondent
to consider at present is that the sale deed dated 29.01.2011 in favour of
the appellant was obtained from his vendor when this property was under
attachment effected lawfully by orders of the trial Court and therefore
cannot bind his rights. He further contended that the attempt of the
appellant is to delay the execution proceedings, at a belated stage brought
out designedly.
8. Before the executing Court, evidence was let in by the parties, both
oral and documentary. Upon considering the material and evidence, the
executing Court mainly considered the effect of Section 64 CPC and held
that the sale in favour of the appellant being void, since entered into
during subsistence of attachment directed by the Court of this property.
Thus, the executing Court did not accept upon the request of the appellant
MVR,J
S.A.No.565 of 2021
leading to dismissal of his claim petition. Learned appellate Judge
confirmed the dismissal of the claim petition of the appellant.
9. This second appeal is presented in these circumstances.
10. At the stage of admission, Sri Raja Reddy Koneti, learned counsel for
the appellant is requested to address about maintainability of this second
appeal, particularly, in the light of the application of Section 64 CPC and
maintainability of the claim petition by the appellant under Order XXI Rule
58 CPC.
11. Thereupon, Sri Raja Reddy Koneti learned counsel for the appellant
and Smt.C.Brahmaramba, learned counsel for the first respondent, who
had entered caveat on his behalf addressed arguments.
12. Without going into other aspects touching upon the merits of this
case, the effect of Section 64 CPC alone is considered now and in relation
to given facts and circumstances.
13. Section 64 CPC reads as follows:
"Private alienation of property after attachment to be void: Where
an attachment has been made, any private transfer or delivery of the
property attached or of any interest therein and any payment to the
judgment-debtor of any debt, dividend or other monies contrary to
such attachment, shall be void as against all claims enforceable under
the attachment."
14. It relates to private alienation of property and by virtue of Section
64(1) CPC, it declares alienation of such property void as against all claims
enforceable under the attachment.
15. Admittedly the property claimed by the appellant under the sale
deed dated 29.01.2011 was attached before judgment on 13.05.2020.
MVR,J
S.A.No.565 of 2021
Therefore, purchase of the property by the appellant was subsequent to
attachment so effected.
16. In view of Section 64(1) CPC, the sale in favour of the appellant is
thus void.
17. Sri Raja Reddy Koneti, learned counsel for the appellant contended
that the property so purchased by the appellant belonged to
Smt.Thunuguntla Swaroopa Lakshmi, sister of the first respondent and in
view of relinquishment deed executed by the second respondent in her
favour and registered on 29.04.2010, this property belonged to her over
which the second respondent had no right or interest. Therefore, learned
counsel for the appellant contended that this property could not have been
attached particularly having regard to Section 60 CPC, which provides for
attachment of the property belonging to the judgment-debtor. In these
circumstances, learned counsel contended that despite the sale of this
property in favour of the petitioner subsequent to the attachment of the
property ordered by the Court, it has no effect and therefore, Section 64
(1) CPC will not apply.
18. Smt.C.Brahmaramba, learned counsel for the first respondent
referring to the instances whereby the transaction covered by the sale
deed dated 29.01.2011 in favour of the appellant was brought out in such
a manner to obstruct the execution of the decree by the decree-holder, it
is contended that all the instances referred to by learned counsel for the
appellant are collusive. Resting on the effect of Section 64(1) CPC, learned
counsel for the first respondent contended that the objection raised by the
appellant in terms of Order XXI Rule 58 CPC cannot stand.
MVR,J
S.A.No.565 of 2021
19. Sri Raja Reddy Koneti, learned counsel for the appellant in support
of his contention relied on MAYA DEVI v. LALTA PRASAD and
G.VIJAYALAKSHMI v. PROGRESSIVE FINANCE CORPORATION,
SECUNDERABAD2 .
20. Relying on Maya Devi, it is the contention of Sri Raja Reddy Koneti,
learned counsel for the appellant that the Court has to determine all the
questions relating to right, title and interest in between the parties and
therefore, a separate suit as such is not permissible. Reliance is placed in
this context in Para - 26 of this ruling, which is as follows:
"In this backdrop, it needs to be kept in perspective that
Order XXI, Rule 97 to Rule 101 CPC envisage the determination of
all questions in Execution proceedings and not by way of an
independent suit. The Executing Court, therefore, was duty bound
to consider and decide the objections filed by the appellant with
complete care and circumspection. I regret to record that this has
not been done. The objections came to be dismissed on 23.07.2010
with brevity bordering on dereliction of duty, in the following
manner:
---------It has been submitted by the counsel for the objector
that the applicant is the absolute owner of the suit property by
virtue of General Power of Attorney which was registered on
12.05.2006 and she is in actual physical possession of the suit
property but the counsel for the Decree-holder has stated that the
objector has no legal right, title or interest as the execution of the
General Power of Attorney and its registration does not confer any
ownership right in favour of the applicant/objector. The counsel
for Decree-holder has also relied upon the judgment of the Hon'ble
Supreme Court in case titled as Suraj Lamp and Industries Private
Limited Vs. State of Haryana and another3."
AIR 2014 SUPREME COURT 1356
2004(5) ALD 82
(2009) 7 Supreme Court Cases 363
MVR,J
S.A.No.565 of 2021
21. Smt.C.Brahmaramba, learned counsel for the respondent in support
of her contention relied on ANNAKKILI v. MURUGAN AND OTHERS 4 and
SARADAMMAL AND OTHERS v. SANKARALINGAM5.
22. In Saradhammal, one of the learned Judges of Madras High Court
referred effect of Order XXI Rule 54 CPC, Order XXXVIII Rule 5 CPC, Section
64 CPC and Section 52 of Transfer of Property Act in Paras 14 to 16 and
they read as under:
"14. The purpose of Order 21 Rule 54 (2) of C.P.C which
contemplates proclamation of attachment at prominent places like
Court House and Village Office including beat of drum or other
customary mode is to make public the attachment and put them alert
about the court's restriction.
15. The provision of proclamation of the order of attachment has been
made in sub-rule (2) of Rule 54 of Order 21 C.P.C is with the object to
prevent the judgment debtor from transferring or charging the
property in anyway and all other persons taking any benefit
thereunder. This provision is for the innocent buyers benefit to
prevent them from falling prey to any debtor alienating his
encumbered property to gullible buyer suppressing the fact of
attachment. This provision cannot be taken advantage by parties
whose knowledge of ABJ expressly stated in the deed. It is obvious
from Ex.B.4, the buyer had wagered on the promise of his vendor who
was pursuing the money suit. ........
.................
16. Order 38 Rule 5 of C.P.C provides to prevent the Act of deceit by
alienating the property pending suit. Section 64 of C.P.C declares any
private alienation when attachment in force as a void
transaction. Section 52 of Transfer of property Act, prohibits transfer
of property affecting the right or interest of the other parties pending
suit. If one reads Section 64 of C.P.C and Section 52 of the Transfer of
Property Act, along with Order 38 of C.P.C will invariably come to the
conclusion that, in the instant case, the transfer of an immovable
2021 Supreme (Madras) 872
2021(1) CTC 830
MVR,J
S.A.No.565 of 2021
property under attachment with knowledge about the attachment has
to fall."
23. Effect and operation of void nature of such transaction against all
claims enforceable under the attachment is well stated in Diravyam Pillai
and Another vs. Veeranan Ambalam and Others6 as under:
"All that Section 64 of the Code provides is that any private transfer
by the judgment-debtor of the property attached shall be void as
against all claims enforceable under the attachment. It will not be
accurate to read Section 64 as putting an end to the power of sale,
because as between the transferor and the transferee, the alienation
will undoubtedly be operative. If the attaching creditor is paid off or
for any reason the attachment ceases to subsist, the alienee's title
will be unassailable. The only effect of Section 64 is that such
transfer shall not prejudice the rights of the attaching creditor."
24. In the context of the fact situation, the nature of sale in favour of
the appellant being during subsistence of attachment of the property
covered by it, squarely attracted Section 64(1) CPC and therefore, it is
void. However, this transaction being void is against all the claims
enforceable under the subsisting attachment. Thus, Section 64(1) CPC, did
not render a sale transaction between the purchaser and the vendor in such
circumstances, void. In a private transfer of this nature, the transfer of
right, title and interest between his vendor and the appellant remained
intact.
25. By reason of this bar under Section 64(1) CPC, the one who can
object such alienation pending attachment are those who have enforceable
claims thereunder, against such property attached. Hence, when the first
respondent stands in such position, whose claim by the date of the sale in
favour of the appellant by his vendor was subsisting, he has right to enforce
his claim against such property. The bar so contemplated under Section
AIR 1939 Mad 702 = (1939)2 M L J 822
MVR,J
S.A.No.565 of 2021
64(1) CPC is not of such nature, that considers whether the person against
whom an order of attachment of property was issued, has a subsisting right
or interest to it or not.
26. Thus, the attachment so effected operates against the property.
Therefore, in the light of operative extent of Section 64(1) CPC, the
contention of Sri Raja Reddy Koneti is that this property so attached did
not belong to the second respondent by the date of attachment and it
belonged to the vendor of the appellant, which is protected by Section 60
CPC cannot stand. Until the claim of the first respondent is satisfied, on
account of the attachment so continuing and subsisting, the appellant has
to bear the effect of Section 64(1) CPC with reference to his alleged
purchase of the property from his vendor under the registered sale deed
dated 29.01.2011. The bar so created is absolute and did not permit any
exception to dilute its effect. When the object and purpose of this
provision is to protect the interests of the decree-holder, against any
possible sham, collusive and make believe transactions, it has to be strictly
applied.
27. Contention of Sri Raja Reddy Koneti, learned counsel for the
appellant that in terms of Order XXI Rule 58 CPC, all such questions
relating to right, title and interest should be considered in the light of what
is laid down by Hon'ble Supreme Court in Mayadevi, is proper. The present
situation in this second appeal is governed by Section 100 CPC and its
parameters. It is further to be noted that the property claimed by the
appellant was already sold on 03.06.2014 in the executing Court.
28. Therefore, in view of the nature of the sale deed dated 29.01.2011
whereupon the appellant is resting his claim in making this objection under
Order XXI Rule 58 CPC, against the first respondent in execution of the
MVR,J
S.A.No.565 of 2021
decree, the inference to draw is that it cannot stand. The executing Court
rightly came to such conclusion. Dismissal of the claim petition of the
appellant by the Executing Court is proper.
29. Learned appellate Judge also considered want of material and
evidence in the shape of relinquishment deed or such material relating to
proceedings in execution petition, in drawing conclusions supporting the
dismissal of this claim petition by the executing Court.
30. If at all the appellant has any claim, his remedy appears to be
elsewhere and to proceed against his vendor including against the second
respondent. The first respondent or auction purchaser, if any shall stand
protected by Section 64(1) CPC, against this claim by the appellant.
Therefore, on this sole ground finding that this second appeal as such is not
maintainable, since this Court is satisfied in terms of Section 100 CPC that
there are no such questions including substantial questions of law to
consider, it has to be dismissed.
31. In the result, the second appeal is dismissed confirming the decree
and judgment of the lower appellate Court, which in turn has confirmed
the decree and order of the executing Court. No costs. Interim orders if
any, stand vacated. All pending petitions, stand closed.
___________________
M. VENKATA RAMANA, J
Dt: 14.12.2021
Rns
MVR,J
S.A.No.565 of 2021
HON'BLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.565 OF 2021
Date:14.12.2021
Rns
