NANCY JOHN LYNDON Vs. PRABHATI LAL CHOWDHURY

JUDGEMENT

(1.) This is an appeal directed against the judgment of a Division Bench of the High Court of Calcutta in appeal from Original Order No. 282 of 1981 with C. R. No. 3842(M) of 1980. The relevant facts for the purpose of this appeal can be shortly stated. In August 1969, the appellant before us obtained a money decree in High Court at Calcutta against the judgment-debtor Maharajkumar Maley Chand Mahatab. On 31st July, 1970 the appellant filed a petition for execution of the decree, numbered as Title Execution Case No. 19 of 1970. On 3rd August, 1970 attachment was levied in execution on open land belonging to the judgment-debtor admeasuring about 19 Kathas at 10A, Diamond Harbour Road, and portion of premises No. 2 Judges Court Road, now, numbered as 6/1D, Diamond Harbour Road and 2/A, Judges Court Road, 24 Paraganas respectively. On 14th September, 1970, the judgment-debtor sold a portion of the attached property admeasuring a little over 11 Kathas to one Bharat Shamshere Jung Bahadur Rana. On 29th March, 1972 Bharat Shamshere Jung Bahadur Rana sold a portion of the said land admeasuring a little over 9 Kathas (referred to hereinafter as "the said property") to Prabhatilal Chowdhary and others who are the respondents in the present appeal. On 9th May, 1972 the aforesaid execution petition, namely, Title Execution Case No. 19 of 1970 was dismissed for default. On 16th September, 1975. on an application by the appellant. the said Title Execution Case No. 19 of 1970 was restored. On a petition dated 26th September, 1975 the said property was again attached. Thereafter, a proclamation for sale of the said property was issued under O. 21. R. 66, Civil P. C. The respondents Prabhatilal Chowdhary filed a petition under O. 21, R. 58. C.P.C., for releasing the said property from attachment. This application was registered as Misc. Case No. 8 of 1978. On 11th August, 1980 the said Misc. Case No. 8 filed by Prabhatilal was dismissed. On 16th March. 1982 the aforesaid appeal from Order No. 282 of 1981 and C. R. No. 2843(M) of 1980 was allowed by the Calcutta High Court. It is this decision allowing the said appeal which is assailed before us.

(2.) Mr. Sanghi, learned counsel for the appellant urged that the sale of the said property by the judgment-debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the said property by the said Bharat Shamshere Jung Bahadur Rana to the respondent were both effected during the subsistence of the attachment. Although the attachment ceased on the dismissal of the said Title Execution case on 9th May, 1972, the said attachment was revived by reason of restoration of the said case on 16th September, 1975. It was submitted by him that, in view of the provisions of S. 64, Civil P. C. the sale of the said property by the judgment-debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the same by Bharat Shamshere Jung Bahadur Rana to the respondent are both void as against the appellant decree-holder.

(3.) Section 64. Civil P. C. runs as follows:-