GUTTA BAPINEEDU Vs. GUTTA VENKAYYA

JUDGEMENT

(1.) We regret we have not had the advantage of an argument on behalf of the respondent. But on the best consideration we could bestow on the case, we think the courts below are wrong.

(2.) It is alleged in the plaint that the first defendant entered into an agreement with the plaintiff in 1902 to sell certain property to him and placed the plaintiff in possession of it. The 2nd defendant obtained a decree for money against the first defendant and attached the suit property in execution. The plaintiff preferred a claim which was dismissed. But during the subsistence of the defendant's attachment the 1 defendant executed a registered conveyance on the 5 November, 1907. The plaintiff asks for a declaration of his right to the property. The plaintiff also charges that the 2nd defendant's decree against the 1 defendant was collusive. The courts below have dismissed the suit on the preliminary ground that there was no right to sue on the allegations contained in the plaint. Section 276 of the Civil Procedure Code of 1882 declares a private alienation of property attached during the continuance of the attachment void against all claims enforceable under the attachment. The two questions to be determined are : (1) whether the sale to the plaintiff was a private alienation, and (2) whether the and defendant's claim is enforceable under the attachment. The title of the plaintiff is based upon the sale deed executed by the 1 defendant. It must, therefore, be treated as a private alienation within the leaning of the section. It is true that the alienation was in pursuance of a prior obligation. But from the mere fact of there being an obligation to convey it, it is impossible to contend that the alienation by which the property was conveyed was not a private alienation. See Dinendranath Sannyal V/s. Ramcoomar Ghose (1881) I.L.R. 7 C. 107 (P.C.). Suppose, however, at the time of attachment a decree for specific performance had been made in a suit upon the agreement to convey : a subsequent conveyance in execution of that decree, though an act inter partes, may not be treated as a private alienation, pure and simple.

(3.) In Gurban V/s. Ashruf Ali (1882) I.L.R. 4 A. 219 the Full Bench of the Allahabad High Court held that a conveyance in pursuance of an award directing a transfer of property by way of sale subsequent to an attachment made after the award and before the decree was passed in terms of the award was no private alienation within the meaning of Section 276 of the Code and, therefore, not void under the section against a claim enforceable under the attachment. The alienation, though strictly an act of parties, was deemed to be not a private alienation because it was in performance of a direction of the court. But where there is no such direction the mere fact of there being an agreement which obliges a party to carry it out by the execution of a conveyance cannot render the alienation other than private.