GALABHAI LALLUBHAI Vs. KIKA JIVAN

JUDGEMENT

(1.) The plaintiff-appellant obtained a decree against one Pema Parbhu on September 21, 1920. The plaintiff applied in execution on January 16, 1923, and obtained an order of attachment with notice under Order XXI, Rule 54, returnable on June 29. On June 19, 1923, the judgment-debtor sold the property to the defendant-respondent Kika, and the actual prohibition upon the judgment debtor and proclamation were effected on June 22, 1923. The question in this appeal is whether the sale to the respondent by the judgment debtor on June 19, 1923, after the order of attachment but before the actual prohibition and proclamation under Order XXI, Rule 54, is voidable at the option of the appellant under Section 64 of the Civil P. C.; if not, whether it can be set aside under Section 53 of the Transfer of Property Act.

(2.) Both the lower Courts held that the respondent had been negotiating for the purchase of the land some time prior to the application for execution, and had paid a proper purchase price in good faith, although the appellant-decree-holder informed him by letter on June 17 of the order for attachment. They upheld thesale and dismissed the application for execution chiefly on the strength of Sinnappan V/s. Arunachalam Pillai 53 Ind. Cas. 207 : 42 M. 844 : 37 M.L.J. 375 : (1919) M.W.N. 678 : 10 L.W. 391 : 26 M.L.T. 281 (F.B.).

(3.) It is argued for the appellant that in the Madras case knowledge of the order for attachment on the part of the purchaser was not proved as it has been held proved in the present case, and the object of prohibition and promulgation under Order XXI, Rule 54 being notice, and that object being served in the present case by the letter of the appellant, the latter is entitled to set aside the sale under Section 64 of the Civil P. C. or at least under Section 53 of the Transfer of Property Act. It is contended for the respondent that an order for attachment is only the beginning and not the end of the attachment and the attachment is not complete until prohibition and proclamation under Order XXI, Rule 54. Section 64, therefore, has no application : on the facts as held by the lower Courts, the plaintiff-respondent is a bona fide purchaser for value, and the sale cannot be set aside under Section 53 of the Transfer of Property Act. In any case as the notice under Order XXI, Rule 22, on the judgment-debtor was not returnable till June 29, 1923, no attachment should have issued until he appeared on this date and showed cause and as in the case of a sale without notice, such attachment is held to be invalid by Parashram V/s. Balmukund 32 B. 572 : 10 Bom.L.R. 752 and Gopal Chunder Chatterjee V/s. Gunamoni Dassee 20 C. 370.