LODHA, J. - (1.) -
(2.) THIS is a plaintiff's second appeal arising out of a suit under O. XXI, r. 63, Civil P. C. Originally the suit was instituted by Bherudan, who died during the pendency of the suit and the present appellant was substituted in his place. Bherudan obtained decree for Rs. 552/9/- besides costs from the Court of Munsiff, Baran on 27-8-1948 against Jagannath, (defendant No. 1), who too died during the pendency of the suit and is now represented by his widow Mst. Ramnathi, respondent No. 2 and other heirs. In execution of the said decree Bherudan got attached the house in dispute situated in Baran on 13-7 1951. Thereafter, the decree-holder and the judgment-debtor entered into a compromise on 2 8 1951 by which it was agreed that the judgment-debtor would pay the decretal amount by a monthly instalment of Rs. 12/- and on his failure to pay two instalments, the decree-holder would be entitled to levy execution for recovery of the whole amount. It was further agreed that the house already attached would continue to remain under attachment till the whole of the decretal amount was paid. On the same day, the Executing Court recorded the compromise and closed the execution case. A certified copy of the order dated 2 8-1951 recording the terms of the compromise, and directing continuance of attachment till all the instalments are paid is marked Ex C. 4. It appears that the judgment debtor after paying one instalment of Rs. 12/-only on 2 9 1951 did not make any payment thereafter and consequently the decree-holder levied execution for the balance of the decretal amount on 10-7-1952 and again got the house in question attached on 28 8-1952. Thereupon Ramnarayan. father of Jagannath filed an objection to attachment on 17-7-1953 alleging that the house under attachment belonged to him and was in his possession and was consequently not liable to be attached and sold in execution of the decree against Jagannath. This objection was dismissed on 3 10-1953. But the execution could not be proceeded with, on account of the death of the decree-holder and consequently the execution application was dismissed on 15-7-1954 without any recovery. Thereafter the decree-holder filed another execution application on 21-1-1956 and prayed for sale of the house in question. Meanwhile Ramnarayan and Jagannath sold the house in question to defendant No 2 Modulal by sale deed Ex. A. 1 dated 3-6-1957. Modulal, therefore, filed objection to attachment and sale of the house in question under O. XXI. r. 58, C. P. C. which was allowed on 31-7-1958 and the house was released from attachment Consequently the decree-holder Bherudan filed the present suit in the Court of Munsiff, Baran under O XXI, r. 63, Civil P. C against the judgment debtor Jagannath as well as the purchaser Modulal on 23-5 1959, and prayed that the sale of the house in question in favour of Modulal be declared null and void and it may further be declared that the house was liable to be sold in execution of the plaintiff's decree against Jagannath. The suit was resisted by the purchaser Modulal and the learned Munsiff, Baran after recording the evidence produced by the parties dismissed the plaintiff's suit on 27-1-1962. The plaintiff filed appeal but the same was dismissed by the Senior Civil Judge, Baran by his judgment dated 22-7-1963. Consequently, the plaintiff has come in second appeal to this Court. Learned counsel for the appellant has argued the following three points. (1) That the lower courts have erred in holding that the order of the Executing Court dated 2-8-1951 continuing the attachment till realisation of the full decretal amount (marked Ex. C. 4) is inadmissible in evidence for want of registration. (2) That the order by the Executing Court dated 2-8-1951 directing attachment to continue till payment of the full decretal amount was valid and the attachment, was subsisting on the date the judgment-debtor sold the property in question to Modulal on 3-6-1957 and consequently the sale was void as against the plaintiff's claim under sec. 64, C. P. C. (3) That both the lower courts wrongly omitted to decide the question whether the sale of the house in question had been effected by the judgment-debtor in favour of Modulal fraudulently with a view to prevent the plaintiff from realising his decretal amount. I shall first take up the question of registration. Sec. 17 (l) (b) of the Indian Registration Act provides that nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be registered. It is further provided in clause (vi) under sub-sec. (2) of sec. 17 that nothing in clause (b) of sub-sec. (1) applies to any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding, The first question for determination is whether the order of the Executing Court dated 2 8-1951 purports or operates to create or declare whether in the present or in the future any right, title or interest, whether vested or contingent to or in the house in question. In this connection it may be relevant to point out that Ex. C. 4 merely provides for continuance of the attachment already made till the realisation of the full decretal amount. There is nothing in this order showing an intention to create a charge or a security for the payment of money. There was a pre-existing attachment on the house in question and the parties agreed by the compromise that attachment shall continue and there is no reason to import any idea of the creation of security. In Government of U. S. of Tra. Co. V. Bank of Cochin Ltd (1), it was held that an attachment does not create any charge on the attached property, and it does not confer any title in the attaching creditor. It was further observed that the attachment merely prevents a private alienation of the attached property. Again in Krishnan vs. Travancore Bank Ltd. (2) it was held that an attaching creditor obtains by the attachment a right to have the attached property kept in custodia legis for the satisfaction of his debt, and any subsequent dealing with that property by the judgment-debtor and persons on whom the attachment was binding at the time it was effected cannot be allowed to defeat that right. In this view of the matter, I have come to the conclusion that the order of the Executing Court dated 2-8-1951 (Ex. C 4) is not compulsorily registerable, as it does not provide for anything more than the continuance of the attachment already made and does not create any charge on the attached property. Consequently its registration was not necessary. Thus the document does not fall within the ambit of sec. 17 (1) (b) of the Indian Registration Act (1908 ). In this view of the matter, it is not necessary to examine the question whether the order Ex. G. 4 falls within the ambit of section 17 (2) (vi) of the Registration Act. In Chhotibai Daulatram Marwari vs. Mansukhlal Jasraj (3) it was held that in a money suit a compromise decree creating a mortgage of immoveable property attached before judgment in plaintiff's favour required registration. The Madras view that where the property had been attached before judgment and that very property was later charged under compromise followed by a decree, such decree did not require registration, was, however, dissented from by the learned Judges of the Bombay High Court. In Ganeshilal vs. Ramgopal (4) wherein a money suit a charge was created in the decree passed on a compromise it was held that the property charged cannot be said to be the subject matter of the suit, and, therefore, the compromise in so far as it created a charge on the property required registration. However, as already stated above since the order Ex. C. 4 is not covered by S. 17 (1) (b) it is needless to pursue the controversy raised by the parties whether the word "proceeding" appearing in S. 17 (2) (i) of the Registration Act refers to execution proceedings. Thus the learned Senior Civil Judge was, in my opinion, in error in holding that Ex. C. 4 required registration. The next question for consideration is whether the sale of the property in question in favour of Modulal on 3-6-1957 (Ex A. 1) was void as the property was under a subsisting attachment? In other words the question is whether the attachment ordered by the Executing Court by its order dated 2-8-1951 based on the compromise would continue till the whole decretal amount was paid. The contention of the learned counsel for the appellant is that the only provision dealing with determination of attachment is Order XXI, r. 57 C P. C. which reads as under : - "r. 57. Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application, or for any sufficient reason adjourn the proceedings to a further date. Upon the dismissal of such application the attachment shall cease. " It is submitted that it is only when the application for execution is dismissed by reason of the decree-holder's default that the attachment ceases on the dismissal of the application. In the present case, it is argued, that the decree-holder did not commit any default and it was on account of the compromise entered into by the parties that the execution application was dismissed on 2-8-51. Thus, according to the learned counsel, the attachment cannot be said to have come to an end under O. XXI, r. 57 Civil P. C. and there is no other provision under which the attachment can be said to have ceased more particularly when there is a specific direction in the order that the attachment will continue till all the instalments are paid. In this connection learned counsel for the appellant has relied on Lachhiram vs. Emperor (5), Mt. Rukhmani vs. Ramswaroop (6), Laldas Kalyandas vs. Shankar Ramchandra (7), Murugappa vs. Nayanim (8), Shivnath vs. Saberuddin Ahmed (9), and Subramanian vs. Official Receiver.
(3.) IN Lachhiram vs. Emperor (5) it was observed that the order, directing the execution case to be dismissed for the time being and the attachment to be maintained was not a proper order for the court to have passed, still the learned Judges were not prepared to treat it as a nullity and as having no effect upon the parties between whom it was passed. It was also held that no fresh attachment was subsequently necessary. From the body of the judgment, it appears that the court below in that case found itself unable to proceed further by reason of the default of the decree-holder. Consequently the Court ought to have dismissed the application or may have adjourned the proceeding to a future date. The learned Judges found that the order passed by the lower court was in contravention of the provisions of O. XXI, r. 57 Civil P. C, yet they held that no fresh attachment was necessary and the Court could proceed with the sate of the property without any fresh attachment. It may be observed that the learned Judges treated the order of the Executing Court not as one of dismissal of the application but as one of adjour-ning the case sine die. Besides that, with utmost respect, I find it difficult to subscribe to the view that even though the order of the Executing Court was illegal yet it could not be treated as a nullity and as having no effect upon the] parties between whom it was passed. In Mst. Rukhmani vs. Ramswaroop (6) the decree-holder-respondents applied to execute the decree and got the judgment debtor's house attached. Subsequently, the respondents agreed at the instance of the judgment-debtors to accept instalments. The Executing Court, therefore, struck off the execution application as infructuous but at the same time said that the attachment was reserved. Thereafter the property was sold to the appellant. The decretal amount having not been paid, the decree-holder applied for sale of the house under attachment, whereupon the purchaser objected. In these circumstances a question arose whether the attachment subsisted after the execution application was dismissed as infructuous. It was held by the learned Judge that O. XXI, r. 57 C. P. C. did not apply because the execution application had not been dismissed by reason of the decree-holder's default. It was further held that attachment is not necessarily at an end because the execution case is struck off or removed from the file and that when the Court expressly keeps the attachment alive it cannot be said to have ceased unless the provisions of O. XXI, r 57 Civil P. C. apply. While dealing with this case it would be necessary to point out that R. 57 was amended by the Nagpur High Court so as to give power to the Executing Court to direct whether the attachment will continue or cease even when the execution application is dismissed for reasons other than the decree-holder's default. This amendment, however, was of no consequence in that case as the learned Judge has specifically said in his judgment that the amendment was not in force at any of the times relevant to the proceedings in the case. In Laldas Kalyandas v. Shankar Ramchandra (7) it was observed that if the execution application is dismissed not for default of the decree holder the attachment is not bound to cease and the court may direct the attachment to continue but if it does not do so the attachment comes to an end with the disposal of the execution application. It may be observed that in that case the application was dismissed in default of the decree-holder and consequently the order of the lower court holding that the attachment came to an end was upheld by the High Court. Thus the above mentioned observations relied upon by the learned counsel for the appellant are obiter. In Murugappa vs. Nayanim (8) the order of the executing court on the first execution petition was as under: - "attachment kept alive till the decree is fully satisfied. The petitioner may apply for the proclamation and sale of the attached property by means of a fresh petition accompanied with the draft sale proclamation. " A fresh execution petition was filed thereafter by the transferee - decree - holder. The question before the learned Judges was whether the above quoted order of the Executing Court could be considered as an order of dismissal? It was held that it was not an order of dismissal of the application and still less there was default on the part of the decree-holder which deserved a dismissal. It was also observed that the Executing Court did not intend to dismiss the application and thereby to raise the attachment. In these circumstances, the attachment was held to continue till the decree was fully satisfied. It may, however, be noted that R. 57 has been amended in Madras where the Court hearing the execution application has been given discretion to continue attachment even when the application is dismissed for reasons other than the decree-holder's default Shibnath vs. Saberuddin Ahmed (9) was a case of attachment before judgment, and it was held that attachment before judgment does not come to an end because the subsequent application for execution proved infructuous. In Subramaniam vs. Official Liquidator (10) it was held that attachment will cease only if the application on which the attachment is effected is dismissed for default and not when a subsequent application was dismissed for default. In that case the property was attached earlier in execution application No. 73/1973, but by reason of the insolvency of the judgment-debtors the execution petition was not pursued and was closed. After the adjudication was set aside, the decree-holder filed application No. 46 of 1941 to continue the execution. On application No. 46 of 1941 the Court directed attachment of properties notwithstanding that the properties were already under attachment petition No. 73 of 1937. The petition No. 46 of 1946 was, however, dismissed as batta was not paid for attachment of the property. The learned Judge held that the direction for batta was unnecessary, and, therefore, the dismissal of execution petition No. 41 of 1946 did not terminate the attachment. It was further held that the dismissal of the subsequent application for default did not determine the attachment made on the earlier application which was not dismissed for default. ;