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
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THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.S.A.No.46 OF 2008
Date: 01.12.2022
KK
