RAMESAN Vs. ABDUL MAJEED

JUDGEMENT

(1.) The appellant herein filed the suit against the second respondent for money due under two documents. He also filed IA No. 2673/78 for attachment before judgment of an item of immovable property belonging to the second respondent. A conditional order of attachment was issued and effected. The order was passed on 26-10-1978 and attachment was effected on 27-10-1978. The first respondent filed a claim in IA 2838/78. The court below allowed the claim and raised the attachment. Plain tiff challenges this order.

(2.) We now advert to the factual background. The disputed item of property belonged to the second respondent and his brother. According to the first respondent under Ext.A1 registered agreement dated 9-3-1978 the brothers agreed to sell the property to the first respondent for a consideration of Rs. 52.000/-. They paid advance of Rs.23,000/- and fixed a period of agreement as seven months. Subsequently, a sum of Rs.5,000/- was paid and the period of agreement was extended by two months as per endorsement dt. 1-4-1978. In due course first respondent sent Ext.A2 notice to the two brothers demanding execution of the sale deed. It appears that notice was rot served on the second respondent, but his brother sent, Ext.A3 reply. On 22-9-1978 second respondent's brother executed sale deed, Ext.A4, in favour of the first respondent in regard to the half share in the property. According to the claimant, on 26-10-1978 second respondent executed release deed of the half share in favour of the claimant under Ext.A5 document and it was registered on 27-10-1978, allegedly prior to the time when attachment was effected. It was on this ground that the first respondent put forward his claim. The appellant denied the genuineness and bona fides of all these transactions and further contended that by the time the release deed was executed attachment had been effected and therefore the release deed has to be treated as ineffective and the attachment has to stand. He rested his case on S.64 of the Code of Civil Procedure. The court below relying on R.10 of O.38 CPC upheld the case of the first respondent.

(3.) Analysing the evidence we find that registered agreement to sell was executed on 9-3-1978, long before the institution of the suit on 26-10-1978. The application for attachment before judgment was filed on 26-10-1978. The order of attachment was issued on 26-10-1978 and the attachment was effected on 27-10-1978. The evidence would show that the attachment was effected between 9.30 A.M. and 10 A.M. on 27-10- 1978. The evidence would show that though Ext.A5 release deed bears the date 26-10-1978 it was executed only on 27-10-1978 after 1 P.M. and it was registered only at 2.10 P.M. In other words execution of Ext. A3 sale deed was after the attachment was effected.