NANDIGAM GANGAYYA Vs. MADUPALLI VENKATARAMAYYA

JUDGEMENT

(1.) This case arises from an application put in by the appellant before us to exclude from Court-sale a property which he had purchased while it was under attachment under an agreement made between him, the decree-holders, and the judgment-debtor that, on the purchase money Rs. 200 being paid to the former, he should no longer execute the decree against the property purchased and that the attachment should be withdrawn. The decree holders have now transferred their decree to one Venkataramayya, the first respondent, and he is now trying to execute the decree by selling this very property. He has also applied for execution against the other properties as well: but we are not concerned with that portion of his execution application. The main question that has to be decided in this case on the facts found, is whether, because the property was under attachment at the time that the appellant purchased it, Section 64 of the Civil Procedure Code is a bar against his plea that the property should not be proceeded against in execution.

(2.) The District Munsif held that the section was not a bar as it did not make the alienation absolutely void but only void to the extent of the claims enforceable under the attachment and that the decree holders, having entered into an agreement and received full consideration for it that they would not proceed against the appellant's property, they were bound by that contract and could not rely upon Section 64 and insist on selling the property again. According to him, Sec. 64 being a section enacted for the benefit of decree holders, it was open to them to waive such a benefit.

(3.) Against the order of the Munsif there was an appeal to the Subordinate Judge. He also found all the facts in favour of the purchaser, namely that the sale deed Ex. A, by which he purchased the property had full consideration, that the agreement set up by him was true and that the purchase money was paid to the decree-holders in pursuance of that agreement. There seems to have been at the same time an arrangement that the purchase money was to be taken in full satisfaction of the decree. That was however an arrangement primarily for the benefit of the judgment-debtor: that arrangement, as it amounted to an adjustment of the decree between the parties, would fall under OrderXXI Rule 2 and could not be pleaded in execution; but, so far as the appellant's claim is concerned, his plea is only that the property purchased by him should not be sold and the only objection that could be raised against him is that Section 64 bars his plea.