- (1.) This Civil by special leave is directed against the judgment of High court of Judicature at Madras dated 24/12/1982. This case raises a short but an important question of law. We would narrate only such facts of the case which are necessary for the disposal of the question of law raised in the case. The appellant Hamda Ammal purchased the suit property from the respondents Govindraju Pathar, Muthulinga Asari and Gurusami Pathar (hereinafter referred to as 'the vendors') by a sale deed executed in her favour on 9/09/1970. Harnda Ammal got the sale deed registered on 26/10/1970. Before registration of the sale deed, respondent Avadiappa filed a money suit for the recovery of Rs. 5,200. 00 on 13/09/1970, against the vendors and obtained attachment before judgment of the property in question on 17/09/1970. Subsequently the aforesaid money suit filed by Avadiappa was also decreed in his favour. The question which calls for consideration is whether Hamda Ammal is entitled to the property sold in her favour by virtue of sale deed dated 9/09/1970 but registered subsequently on 26/10/1970, or Avadiappa has a better claim to the property on account of an attachment before judgment made on 17/09/1970 in the suit filed by him on 13/09/1970 i. e. prior to the date of registration of sale deed in favour of Hamda Ammal
(2.) In order to decide the above controversy we would advert to some relevant provisions. Order XXXVIII Rule 5 Civil Procedure Code which provides the. conditions for attachment before judgment reads as under: "5.(L) Where at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, (A) is about to dispose of the whole or any part of his property, or (B) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2 The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3 The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4 If an order of attachment is made without complying with the provisions of sub-rule (1 of this rule, such attachment shall be void. "the above provision itself makes it clear that the attachment before judgment would be made where the court is satisfied that the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of court with the intention to obstruct or delay the execution of any decree that may be passed against him. Thus this provision would not apply where the sale deed has already been executed by the defendant in favour of a third person. A transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made with the intention to obstruct or delay the execution of any decree. It would be a different case altogether if a creditor wants to assail such transfer by sale under S. 53 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the Act') on the ground of a fraudulent transfer. Such suit would be decided on totally different considerations in accordance with the provisions of S. 53 of the Act. Order XXXVIII Rule 10 Civil Procedure Code reads as under: "10.Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. "this provision also makes it clear that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit.
(3.) S. 64 Civil Procedure Code prohibits private alienation of property after attachment and reads as under: "64.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. Explanation. FOR the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets. "the above provision bans or prohibits a private transferor delivery of the property attached or of any interest therein contrary to such attachment as void as against all claims enforceable under the attachment. The order of attachment is issued on a prescribed Form No. 24 in Appendix E to Civil Procedure Code which prohibits and restrains defendant from transferring or charging the property by sale, gift or otherwise. Thus neither in S. 64 Civil Procedure Code nor in the form prescribed for attachment there is any prohibition for submitting the document of sale for registration. The act of submitting the sale deed for registration which has already been executed prior to an attachment is not an act of transfer which is prohibited under the above provisions.;