Andhra Pradesh High Court - Amravati
The vs Unknown on 4 January, 2022
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
APPEAL SUIT No.172 of 2021
JUDGMENT:-
The appellant herein purchased a property under a
registered deed of sale dated 06.01.2015 registered as
document No.60 of 2015. Thereafter, upon coming to know on
08.03.2018, that the said property is the subject matter of an
Execution Petition bearing E.P.No.17 of 2016 in O.S.No.698 of
2014 in the Court of the XII Additional District Judge,
Visakhapatnam, the appellant herein had moved E.A.No.14 of
2018 under Order XXI Rule 58 of C.P.C.
2. In the course of the said proceeding, the executing
Court recorded the finding that the E.P. schedule property had
been attached on 08.12.2014 in O.S.No.698 of 2014 and the
execution of the deed of sale on 26.12.2014 in favour of the
appellant and registration of the said deed of sale on
06.01.2015 is subsequent to the attachment of the E.P.
schedule property. This finding is not disputed.
3. It appears that O.S.No.698 of 2014 had been filed
by the 1st respondent herein against the 2nd respondent herein
for recovery of an amount of Rs.18,65,000/- on the basis of a
promissory note and after the initial attachment on
08.12.2014, the same was made absolute on 09.02.2016 vide
order in I.A.No.1130 of 2014 in O.S.No.698 of 2014.
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A.S.No.172 of 2021
4. The contentions raised by the appellant, in the
claim petition, was that the suit itself is a collusive suit under
which the decree under execution, was obtained fraudulently
and collusively and further the appellant was a bonafide
purchaser for value and as such, the appellant cannot be
disturbed from the ownership and possession of the said
property.
5. The Executing Court, on the basis of Section 64 of
the Code of Civil Procedure, had held that the sale of the E.P.
schedule property executed in favour of the appellant is void
and as such, the appellant cannot press the claim petition.
The executing Court also considered the contention of the
Appellant on the question of collusion between the parties and
held that the said ground is not available as the scope of
Order XXI Rule 58 of C.P.C. excludes such a ground. The trial
Court also held that such a ground could be raised only in an
application of Section 47 of C.P.C. and since the present
application is under Order XXI Rule 58 of C.P.C, the said
ground is not available. Similarly, the Court also concluded
that the question of bonafide purchase does not arise in any
application under Order XXI Rule 58 of C.P.C.
6. The Executing Court on the basis of the above
findings had dismissed E.A.No.14 of 2018 on 06.02.2020.
Aggrieved by the said order, the present appeal has been filed.
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A.S.No.172 of 2021
7. Heard Sri S.Subba Reddy learned counsel
appearing on behalf of Sri T.V.Jaggi Reddy learned counsel,
appearing for the appellant and Sri G.Ram Gopal learned
counsel, appearing for the 1st respondent.
8. The undisputed facts in the present case are that
the 1st respondent had obtained an attachment over the E.P.
schedule property on 08.12.2014 and the same had been
made absolute on 09.02.2016. The deed of sale relied upon by
the appellant is said to have been executed on 26.12.2014 and
registered on 06.01.2015. It is clear that the sale of the
property in favour of the appellant was done only after the
property had already been attached in O.S.No.698 of 2014.
9. Section 64 of C.P.C which reads as follows:
"64. Private alienation of property after
attachment to be void-
(1) 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 moneys contrary
to such attachment, shall be void as against all
claims enforceable under the attachment.
(2)............
Explanation:..............
10. The consequence of this provision is that the sale
made in favour of the appellant is void as against the claim of
the 1st respondent. In the circumstances, the appellant
cannot stand in the way of the execution of the judgment and
decree passed in favour of the 1st respondent herein.
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A.S.No.172 of 2021
11. The contention of the appellant that the decree on
the basis of which the execution petition has been filed, is a
collusive decree, cannot be countenanced in a petition filed
under Order XXI Rule 58 of C.P.C. An application under
Order XXI Rule 58 of C.P.C. is an application setting out a
claim of title and ownership against the person seeking the
sale of a property under an execution petition. The scope of
this section would not extend to going into the validity of a
decree.
12. The further contention of the appellant that he
was a bonafide purchaser without notice of the suit also does
not assist the appellant in stopping execution proceedings. As
laid down in section 64 of C.P.C., all transactions conducted
after the attachment of the property are to be treated as void.
There is no exemption for bonafide purchasers under Section
64 of C.P.C. In the circumstances, nothing would turn on the
question of whether the appellant is a bonafide purchaser or
not.
13. For all the aforesaid reasons, I do not find any
reason to interfere with the judgment of the executing Court.
14. Accordingly, the Appeal Suit is dismissed.
However, in the circumstances, without costs.
Miscellaneous petitions, pending if any, shall stand
closed.
___________________________________
JUSTICE R.RAGHUNANDAN RAO
Date : 04.01.2022
RJS
RRR,J
A.S.No.172 of 2021
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
APPEAL SUIT No.172 of 2021
Date : 04.01.2022
RJS
