HAMDA AMMAL Vs. AVADIAPPAPATHAR AND
LAWS(SC)-1990-11-95
SUPREME COURT OF INDIA (FROM: MADRAS)
Decided on November 07,1990

Hamda Ammal Appellant
VERSUS
Avadiappapathar And Respondents


Cited Judgements :-

RITA KHURANA VS. KAMLA DEVI [LAWS(DLH)-1997-12-48] [REFERRED]
P P RAJ VS. RAMA FINANCE CORPORATION [LAWS(APH)-1999-9-75] [REFERRED TO]
ST MARYS EDUCATIONAL SOCIETY VS. QUTUBUDDIN AHMED [LAWS(APH)-2002-3-36] [REFERRED TO]
ADINARAYANA VS. S GAFOOR SAB [LAWS(APH)-2004-3-135] [REFERRED TO]
STATE OF KERALA VS. ALL KERALA DOCUMENTS WRITERS [LAWS(KER)-2005-10-11] [REFERRED TO]
STATE OF KERALA VS. GEORGE JACOB [LAWS(KER)-2005-10-4] [REFERRED TO]
Commissioner of Gift tax Chennai VS. Shree Shyam Sayee Corporation [LAWS(MAD)-2004-4-47] [REFERRED TO]
V Srinivasan VS. Commissioner of Gift tax TamilNadu V [LAWS(MAD)-2004-4-83] [REFERRED TO]
JAMALS VS. P SYAMALA PROPRIETRIX PRAJWAL ASSOCIATES [LAWS(MAD)-2005-8-156] [REFERRED TO]
MOTILAL GIRDHARILAL SHARMA VS. DATTATRAY BANDU JAGTAP [LAWS(BOM)-2005-11-10] [REFERRED TO]
BANK OF MAHARASHTRA VS. BAGWE UDYOG LTD [LAWS(BOM)-2007-6-27] [REFERRED TO]
N RAMAKRISHNAN VS. S K HUSSAIN [LAWS(MAD)-2010-9-519] [REFERRED TO]
KULDIP SINGH VS. BALWANT KAUR [LAWS(P&H)-1990-11-14] [REFERRED TO]
MAHARANI YOGESHWARI KUMARI VS. COMMISSIONER OF INCOME TAX [LAWS(RAJ)-1994-7-18] [REFERRED TO]
PREMLAL R DESAI VS. NITINKUMAR MANHARLAL PAREKH [LAWS(BOM)-1999-7-145] [REFERRED TO]
SENNAMMAL VS. LAND COMMISSIONER [LAWS(MAD)-2011-6-154] [REFERRED TO]
BHAGWATI PRASAD VS. SHAKUR [LAWS(RAJ)-2000-9-26] [REFERRED TO]
NAR BAHADUR KHATIWADA VS. STATE OF SIKKIM [LAWS(SIK)-2013-7-3] [REFERRED TO]
NARINDER SINGH VS. STATE OF H.P. [LAWS(HPH)-2003-5-24] [REFERRED TO]
COMMISSIONER OF INCOME TAX-XVI VS. K. RAMAKRISHNAN [LAWS(DLH)-2014-3-274] [REFERRED TO]
IRUSA GOUNDER VS. PALANIPPAN [LAWS(MAD)-2014-11-364] [REFERRED TO]
SONYA CHIKHALIKAR VS. ANITA FERNANDES [LAWS(BOM)-2014-10-126] [REFERRED TO]
P.R. MANJUNATHA CHETTY VS. VARALAKSHMI AND ORS. [LAWS(MAD)-2015-6-209] [REFERRED TO]
ENERGY AAHAR PVT. LTD. VS. STATE OF HARYANA AND ORS. [LAWS(P&H)-2011-1-334] [REFERRED TO]
COMMISSIONER OF INCOME TAX BOMBAY VS. PODAR CEMENT PRIVATE LIMITED AND OT HERS [LAWS(SC)-1997-5-72] [REFERRED TO]
ITTIANAM VS. CHERICHI ALIAS PADMINI [LAWS(SC)-2010-7-125] [REFERRED TO]
GOPISETTI VENKATA LAKSHMI NARASIMHARAO VENKATA RAMAYYA VS. SATYA FINANCIAL SERVICES NARSAPURAM [LAWS(APH)-2010-4-23] [REFERRED TO]
ABDUL JALAL VS. MARIYA FINANCIERS [LAWS(KER)-2002-2-12] [REFERRED TO]
C SUBRAMANIAN VS. N CHOCKALINGAM ASARI [LAWS(MAD)-2011-1-276] [REFERRED TO]
RAMADHAR SINGH VS. RAM NARAYAN SHARMA [LAWS(PAT)-2010-4-274] [REFERRED TO]
BHARAT PETROLEUM CORPORATION LTD VS. JAGRIT KHAITAN [LAWS(DLH)-2013-2-20] [REFERRED TO]
PUNUMACHA ASHOK RAJU VS. INDUKURI VENKATA GOPALA KRISHNAM RAJU [LAWS(APH)-2013-3-4] [REFERRED TO]
ASUTOSH ENTERPRISES LTD. VS. BANK OF RAJASTHAN LTD. [LAWS(CL)-2013-4-2] [REFERRED TO]
RANJITSINH JITUSINH ZALA VS. INDIAN OIL CORPORATION AND ANR. [LAWS(GJH)-2015-3-348] [REFERRED TO]
AYITAM VENKATA ANJANI VS. GANESHULA UMA PARVATHI AND ORS. [LAWS(APH)-2015-9-19] [REFERRED TO]
KHEM CHAND VS. D.D.C., JAUNPUR AND ORS. [LAWS(ALL)-2015-10-124] [REFERRED TO]
PREMA DEVI VS. D.D.C., JAUNPUR AND ORS. [LAWS(ALL)-2015-10-125] [REFERRED TO]
RAJENDRA SAHKARI AWAS SAMIT LTD. VS. STATE OF U.P. AND ORS. [LAWS(ALL)-2016-2-44] [REFERRED TO]
T.V. ANIL KUMAR VS. JAMES THOMAS [LAWS(KER)-2016-3-159] [REFERRED TO]
MAHENDRA KUMAR VS. SMT. MANNI DEVI & ORS. [LAWS(RAJ)-2000-12-66] [REFERRED TO]
SUBHASH BHIMASHANKAR KALASE VS. STATE BANK OF INDIA [LAWS(BOM)-2004-8-202] [REFERRED]
INDIAN OIL CORPORATION & 1 VS. RANJITSINH JITUSINH ZALA [LAWS(GJH)-2015-11-154] [REFERRED]
HARI RAM SINGH AND OTHERS VS. D D C & OTHERS [LAWS(ALL)-2013-5-462] [REFERRED]
HARMAN KAUR VS. BOARD OF REVENUE LKO AND OTHERS [LAWS(ALL)-2013-7-441] [REFERRED]
K.JANSI VS. SUB REGISTRAR(PERAMBAKKAM) [LAWS(MAD)-2017-1-44] [REFERRED TO]
JITEN CHANDRA GHOSH & ORS. VS. NIPENDRA CHANDRA GHOSH [LAWS(CAL)-2016-7-156] [REFERRED TO]
SHERIKATH AND OTHERS VS. SHAMSEENA AND ANOTHER [LAWS(KER)-2017-2-110] [REFERRED TO]
YOGESH KUMAR MALIK VS. INDIAN OIL CORPORATION LIMITED & ANR [LAWS(DLH)-2018-4-347] [REFERRED TO]
PREM CHAND S/O LATE SHRI JAGANNATHJI VS. SMT. HEM KUNWAR W/O SHRI RADHAKRISHNA [LAWS(RAJ)-2018-1-354] [REFERRED TO]
N. MURUGESAN VS. B. SHIVA [LAWS(MAD)-2018-3-126] [REFERRED TO]
SAK APPARELS, REP BY ITS PARTNER, DEEPAK RAMCHAND VS. MADRAS MANAGEMENT ASSOCIATION REP BY ITS POWER OF ATTORNEY AGENT, R RAGHUNATHAN [LAWS(MAD)-2017-12-383] [REFERRED TO]
RAMAYANAM SATISH KUMAR VS. THAMADA BHASKARA RAO AND ANOTHER [LAWS(APH)-2018-4-68] [REFERRED TO]
CITY UNION BANK LIMITED, KARIMNAGAR BRANCH, REP. BY ITS CHIEF MANAGER AND AUTHORISED OFFICER VS. SUB REGISTRAR AND OTHERS [LAWS(APH)-2018-8-38] [REFERRED TO]
VERIZON BUILDERS AND DEVELOPERS LTD VS. JYOTHI SUSAN JOHN [LAWS(KER)-2018-12-42] [REFERRED TO]
K SARAVANAN VS. SUBBULAKSHMISUKUMAR [LAWS(MAD)-2019-1-90] [REFERRED TO]
MAHENDRA VALJI RATHOD VS. NATIONAL RADIO AND ELECTRONICS COMPANY [LAWS(BOM)-2019-4-48] [REFERRED TO]
CITY UNION BANK LIMITED VS. SUB REGISTRAR, PEDDAPALLI [LAWS(TLNG)-2019-8-83] [REFERRED TO]
SULAIKHA HAMEED VS. IBRAHIM [LAWS(KER)-2019-3-218] [REFERRED TO]
RAMDEV VS. SITA RAM [LAWS(CHH)-2019-7-136] [REFERRED TO]
SUJATA KAPOOR VS. UNION BANK OF INDIA [LAWS(DLH)-2019-12-97] [REFERRED TO]
S.ELANGO VS. INDIAN OIL CORPORATION LIMITED [LAWS(MAD)-2020-1-444] [REFERRED TO]
K.P.JAYAN VS. SURYANARAYANAN [LAWS(KER)-2020-12-267] [REFERRED TO]
LATHIKA V.MENON VS. BINDHU K.S. [LAWS(KER)-2017-2-392] [REFERRED TO]
CHITRANSHI GOYAL DAUGHTER OF SHRI SUNIL KUMAR GOYAL VS. INDIAN OIL CORPORATION LTD [LAWS(RAJ)-2022-2-12] [REFERRED TO]


JUDGEMENT

- (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.

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