S APPA RAO Vs. UMAKANTA TRIPATHY

JUDGEMENT

(1.) THE petitioner filed a Money Suit against opposite parties 2 to 4 for recovery of Rs. 10,832. 50 on the basis of a promissory note. He obtained decree on 309-69 and filed execution case in 1974 for realisation of the decretal dues. He attached the disputed property on 3-7-69. Opposite party No. 1 filed a petition under Order 21, Rule 58, C. P. C. to release A. O. 025 dec. of land from attachment on the ground that he obtained a decree for specific performance of contract against opposite party No. 3 on 27-9-75 in Title Suit No. 257 of 1969. The contract in favour of opposite party No. 1 is dated 15-8-1968. The petitioner challenged the application by opposite party No. 1 on the ground that the contract in his favour was illegal and the property having been attached on 3-7-69, opposite party cannot have any right or interest in the property. The application filed by opposite party No. 1 was allowed by the learned Additional subordinate Judge. As against the said order, the present revision has been filed.

(2.) MR. Mohanty, the learned counsel for the petitioner, contends that the learned Additional Subordinate Judge should have given a finding as to possession of the property which is necessary according to the provisions of rules 58, 59, 60 and 61 of Order 21, C. P. C. It is not disputed that opposite party No. 1 has already obtained a decree for 25 decimals of land in a suit for specific performance of contract. The contract is said to be prior to the institution of the Money Suit by the petitioner. The property was attached before judgment by the petitioner in 1969 and the suit for specific performance of contract was also filed in 1969. Opposite party No. 1 obtained the decree in a suit for specific performance of contract while the attachment was subsisting.

(3.) MR. Misra, the learned counsel for the opposite party No. 1 contends that by attachment before judgment, the petitioner did not get any higher right than that of opposite party No. 1. In Angu Pillai v. Kasiviswanathan Chettiar, AIR 1974 Mad 16, a Division Bench of the Madras High Court has observed that an attaching decree-holder attaches not the physical property but only the right of the judgment-debtor in the property. The right of the judgment-debtor is on the date of attachment, qualified by the obligation incurred by him under the earlier agreement to sell or mortgage and the attaching decree-holder cannot ignore that obligation and bring it to sale as if it remained the absolute property of the judgment-debtor. In Banta Singh v. Dy. Director of Consolidation, AIR 1973 All 455, it has been held that attachment before judgment creates no charge and therefore does not affect subsequent private sale made in performance of the earlier agreement to sell entered into before attachment. The learned Judge has also taken notice of the provisions of Order 38, Rule 10, c. P. C. and has observed that the said provisions are wide enough to include even such a right and, therefore, the transfer made in pursuance of an agreement entered into prior to the attachment of the property will not be defeated on the ground that the transfer was made after the attachment and order 38, Rule 10, C. P. C. will come to the rescue of the transferees. Decisions of several High Courts have been relied upon for this proposition. In Purna Chandra Basak v. Daulat AH Mollah, AIR 1973 Cal 432, it has been held that an attaching creditor can only attach the right, title and interest of his debtor at the date of the attachment and on principle, his attachment cannot confer upon him any higher right than the judgment-debtor had at the date of the attachment. If a person, having a contract of sale in favour, has such preexisting right the attachment could not be binding upon him. If the promisee gets a conveyance after the attachment, in pursuance of his contract, he takes a good title in spite of the attachment. Even if the property is sold in execution, he can enforce specific performance of his contract against the auction purchaser. It has further been held in this case that where the agreement for sale is entered into prior to the attachment and the property is purchased by the plaintiff in specific performance of the agreement for sale as a result of the compromise decree, the right of the plaintiff will prevail over the purchase of the property by the defendant in the court sale on the basis of the attachment.