JETHALAL NANSHAH MODI Vs. BACHU

JUDGEMENT

(1.) THIS is a Letters Patent appeal against a decision of Mr. Justice Macklin, and the facts out of which it arises are not now in dispute. The father of defendant No. 2 filed against defendant No. 1 a suit in the Court of the First Class Subordinate Judge at Ahmedabad to recover Rs. 5,000 and applied for attachment before judgment of defendant No. l's share in the houses in suit. Defendant No. 1, however, put in a purshis that he was not going to sell or encumber the said property and that he would not do so. Thereupon the property was not attached and the suit ended in a decree in favour of defendant No. 2's father and was confirmed in appeal by the High Court on April 8, 1937. Defendant No. 1 borrowed some amounts for that litigation from the plaintiff, who is his cousin, and within five days after dismissal of the appeal by the High Court he agreed to sell his share in the property in the suit to the plaintiff for Rs. 2,100 due to him in respect of the advances already made. The sale-deed in pursuance of the agreement was to be executed within one month, but in the interval defendant No. 2 sought the execution of his decree in darkhast No. 325 of 1937 and on May 5, 1937, got defendant No. l's share in the property in suit attached. The plaintiff then made an application under Order XXI, Rule 58, of the Civil Procedure Code, to have the attachment raised on the ground that he had already acquired an interest in the properties attached. But his application was rejected on the ground that the agreement by itself did not create any interest in the properties and that the proper course for the plaintiff was to obtain a decree for specific performance of that agreement. The plaintiff, therefore, filed this suit for specific performance of that agreement and to have a registered sale-deed executed in his favour and also to obtain a declaration that defendant No. l's share in the properties in suit was not liable to be attached and sold by defendant No. 2 in execution of his decree against defendant No. 1. Defendant No. 1 admitted the plaintiff's claim and expressed his willingness to pass the agreed sale-deed, but stated that he could not do so as a prohibitory order had been issued against him in the darkhast of defendant No. 2 under Order XXI, Rule 54, of the Civil Procedure Code. Defendant No. 2, however, objected to the specific performance of the contract of sale on the ground that he had already got the property attached in execution of his decree. The trial Court held that the agreement of sale was fraudulent and brought about with a view to defeat or delay defendant No. 2 and that the plaintiff was not, therefore, entitled either to obtain specific performance of that agreement or to have defendant No. 2 restrained from executing his decree against defendant No. 1. The suit was, therefore, dismissed. In appeal the learned District Judge held that although the agreement might have the effect of giving preference to the plaintiff, and thereby perhaps delaying other creditors, the agreement was not vitiated and that defendant No. 1 was bound to pass the sale-deed in accordance with that agreement. But though defendant No. l's share in the properties in suit had already been attached, the sale-deed passed in pursuance of the antecedent agreement would not be affected by the intervening attachment and, therefore, the plaintiff was not entitled to have defendant No. 2 restrained from proceeding with his darkhast against defendant No. 1. As a result, the decree of the trial Court was modified and the plaintiff was given a decree for specific performance of the agreement by defendant No. 1, but the suit as regards the prayer for injunction against defendant No. 2 was dismissed. In second appeal it was held that there was No. reason why an agreement for sale, even when untainted with any fraud, should prevail over an attachment already made in execution of a decree and, therefore, the appeal was allowed and the decree of the trial Court dismissing the suit was restored.

(2.) SECTION 64 of the Civil Procedure Code provides that where an attachment has been made, any private transfer of the property attached shall be void against all claims enforceable under the attachment. A large number of rulings were cited at the bar regarding the effect of the attachment of immoveable property on its sale subsequent to the attachment but in pursuance of an agreement of sale entered into before the attachment. Out of those rulings we may refer to the decisions in Basappa v. Hanmappa (1939) 41 Bom. L. R. 943, Rango Ramchandra v. Gurlingappa Chinnappa (1940) 43 Bom. L. R. 206, Yeshvant Shankar v. Pyaraji Nurji (1942) 45 Bom. L. R. 208, and Diraviyam v. Veeranan [1939] Mad. 853. The effect of these rulings may be said to be that where a purchase is subsequent to the attachment, but the agreement in pursuance of which the purchase is made is prior to the attachment, the purchase prevails against the attachment and in such a case the party attaching the property will not be entitled to the benefit of SECTION 64. This question, however, is really immaterial for the purpose of this appeal, since SECTION 64 affects only private sales after attachment and does not cover the enforced execution of a conveyance in obedience to a decree of a Court. In the present case there has been no private sale following upon the agreement to sell. The plaintiff wants that the agreement should be enforced and if a decree for specific performance of the agreement is passed, and a sale-deed is executed in accordance with that decree, it will not be affected by SECTION 64. We are, therefore, concerned only with the plaintiff's right to have the agreement of sale enforced by a decree for its specific performance and not with the nature or extent of the rights created by it in view of the attachment of the property after the agreement.

(3.) THE appeal is dismissed with costs.