Francis @ Porinju v Navodaya Kuries & Loans (P) Ltd and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932** ## **WP(C).NO. 20245 OF 2010(O)** ## **----------------------------------------** **OS.1156/1991 OF PRL.M.C.,IRINJALAKUDA** **....................** ## **PETITIONER(S):** - **-----------------------** ## **FRANCIS @ PORINJU, S/O.KAVALAKKAT POULOSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK.** **BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH** ## **RESPONDENT(S):** **------------------------** **1. NAVODAYA KURIES & LOANS (P) LTD, THRISSUR.** **2. KOCHU PAULY S/O. LATE KUTTICHAKKU AUGUSTHY & KOCHAMMA AUGUSTHY, KIZHAKKE CHALAKUDY, MUKUNDAPURAM TALUK.** **3. GEORGE S/O.KUTTICHAKKU AUGUSTHY, 23/1296, SATHEESH VIHAR, NEAR GANESH KALA SAMITHY, CHERUVANNUR NADA, KOZHIKODE.** **4. LILLY AUGUSTINE,D/O.KUTTICHAKKU AUGUSTHY C/O.AKKARA AUGUSTINE,KIZHAKKE CHALAKUDY VILLAGE, PUTHUPARAMBU, M.G.ROAD, CHALAKKUDY.** **5. K.A.SUNNY, S/O.KUTTICHAKKU AUGUSTHY, W/O.JOSE, KURIVITHADOM HOUSE, TEXTILE BUSINESS, A.C.ROAD, MUVATTUPUZHA.** **6. MARY JOSE, D/O.KUTTICHAKKU AUGUSTHY W/O.JOSE, KURIVITHADOM HOUSE, TEXTILE BUSINESS, A.C.ROAD, MUVATTUPUZHA.** **7. ROSI JOY, C/O.MUZHUVANCHERY VEETTIL** - **JOSE, STATE BANK OF INDIA, WAYANAD.** **8. LOOSY KURUVILA C/O.KURUVILA ELANIKKAL, MAMANGALAM, STATE BANK OF INDIA,BROADWAY, ERNAKULAM,.** **9. SIMON, S/O.KARAKUNNEL MATHEW, KALLURKADU VILLAGE, MUVATTUPUZHA.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R.”** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.20245 of 2010 ==================================== Dated this the 20[th] day of July, 2010** ## **J U D G M E N T** Following points arise for a decision in this Writ Petition: (i) Whether an attachment over immovable property ceases to have effect when that property is sold in auction in execution of another decree? (ii) Whether the attachment would revive when the defendant whose property was attached later purchased the property from the auction purchaser? 2. Short facts necessary for a decision of the case are: Petitioner filed O.S. No.94 of 1989 in the court of learned Sub Judge, Irinjalakuda against predecessor-in-interest of respondent Nos.2 to 8 and others (hereinafter referred to as “the defendant) and in that suit, property of defendant was attached (before judgment) on 31.03.1989. There was also another suit against the defendant (O.S. No.1156 of 1991) in the same court where a ## **W.P(C) No.20245 of 2010** -: 2 :- decree for recovery of money was passed against defendant and others. Decree holder in O.S. No.1156 of 1991 sought execution of his decree and the same property belonging to the defendant was attached on 05.12.1994 and sold in court auction on 21.12.1995. That property was purchased by respondent No.1-decree holder in O.S. No.1156 of 1991. Respondent No.1 transferred that property to the defendant on 11.03.1997 and on the next day, defendant transferred it to respondent No.9. On 14.06.1990 petitioner got a decree in O.S. No.94 of 1989 against the defendant for recovery of money. Petitioner filed E.A.No.1368 of 2003 in O.S. No.1156 of 1991 to set aside the court sale. That application was dismissed. Petitioner then filed E.A. No.1563 of 2009 in E.P. No.1406 of 1994 in O.S. No.1156 of 1991 for a declaration that petitioner has right over the decree schedule property and to cancel the sale certificate issued to respondent No.1 in O.S.No.1156 of 1991. That application was opposed by the contesting respondents and by the impugned order the executing court dismissed it since property referred to in the application was sold in court auction 21.12.1995, sale was confirmed and hence no claim under Order XXI Rule 58 of the Code of Civil Procedure (for short, “the Code”) could be entertained, claim vide E.A. No.1563 of 2009 is barred by ## **W.P(C) No.20245 of 2010** ## -: 3 :- limitation and that for the very same relief petitioner had filed E.A. No.1368 of 2003 which ended in dismissal. Order of executing court on I.A. No.1563 of 2009 is under challenge in this Writ Petition. Learned counsel for petitioner contends that decision of the executing court is not correct. According to the learned counsel property belonging to the defendant was attached in O.S. No.94 of 1989 on 31.03.1989 and hence when the defendant again acquired title over the property from respondent No.1-decree holder in O.S. No.1156 of 1991 as per sale deed dated 11.03.1997 attachment over the property revived. Hence transfer made by the defendant in favour of respondent No.9 is void as against claim of petitioner arising from attachment in O.S. No.94 of 1989 in view of Section 64 of the Code. It is argued that finding of the executing court that dismissal of E.A. No.1368 of 2003 affected maintainability of E.A. No.1563 of 2009 is erroneous since the latter challenged court sale and all proceeding subsequent thereto which could be done under Sec.151 of the Code. Learned counsel argues that label given to I.A. No.1563 of 2009 as one under Order XXI Rule 58 of the Code should not have deterred the executing court from granting relief to the petitioner by applying the proper Section of law. 3. It is not disputed that petitioner had attached the **W.P(C) No.20245 of 2010** ## -: 4 :- property in O.S.No.94 of 1989 on 31.03.1989 before judgment and he obtained a decree in that case against the defendant on 14.6.1990. In execution of decree in O.S. No.1156 of 1991 against defendant and others respondent No.1 attached the same property on 05.12.1994 and that property was purchased by respondent No.1 in court auction on 21.12.1995. 4. Then the question is whether attachment effected in O.S. No.94 of 1989 survived after the court sale in O.S. No.1156 of 1991 on 21.12.1995. An attachment does not create any right or interest over the property in favour of attaching creditors; nor is it an encumbrance over the property. Even non-mention of a prior attachment in the sale proclamation will not affect validity of the sale effected pursuant to that proclamation. Section 64 of the Code does not make a transfer subsequent to the attachment invalid for all purposes but only says that any private transfer or delivery of the property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Invalidity of the sale effected in violation of attachment is only to the extent of enforceability of claims arising under the attachment. Thus a private alienation (voluntary sale) contrary to and in violation of the attachment is void as against claims enforceable under the attachment. But a ## **W.P(C) No.20245 of 2010** ## -: 5 :- court sale in execution of a money decree is not a private transfer (voluntary sale). It is an involuntary sale. An involuntary sale in execution of a decree divests right, title and interest of the defendant in the property and confers those rights on purchaser in court auction. After such involuntary sale there is nothing left in the property to be sold at the instance of another decree holder who may have attached the property earlier. Purchaser in court auction takes the property free from all other attachments since with the court sale all attachments subsisting over the property fall to the ground. Mitter and Macpherson, JJ., ## in **Kashy Nath Roy Chowdhry v. Surbaband Shaha** **and Others** (1885 [12] ILR [Cal.] 317) have held that when a property is sold in execution of a decree it cannot be sold again at the instance of another decree holder who may have attached it before the attachment effected by the decree holder under whose decree it is actually sold, and that when a judicial sale takes place all previous attachments effected upon the property sold fall to the ground. The same view is taken in **Thiru Venkita Reddiar v. Nourdeen** (1977 KLT 877). Learned counsel for petitioner tried to distinguish the decision in **Thiru Venkita Reddiar v. Nourdeen** (supra) contending that reliance in that case was made on the decision in **Kashi Nath Roy** **W.P(C) No.20245 of 2010** ## -: 6 :- **Chowdhry v. Surbanand Shaha** (supra) which was rendered on the basis of Code of Civil Procedure, 1859. It is also argued by the learned counsel that observations made in **Thiru Venkita Reddiar v. Nourdeen** (supra) should be taken as obitor. I am afraid, neither of the contentions can be accepted. The proposition of law stated in **Kashi Nath Roy Chowdhry's case** (supra) is that on a court sale all prior attachments on it fall to the ground. The Code (of 1908) makes no deviation on that principle. In **Thiru Venkita Reddiar's case** (supra) question specifically considered was the effect of prior attachment on a court sale at the instance of another decree holder. That point was decided by this Court in the way I have referred to supra and hence the decision cannot be said to be obitor. Hence the attachment before judgment though made prior on point of time in O.S. No.94 of 1989 ceased to have effect with the court sale in favour of respondent No.1 (in O.S. No.1156 of 1991) on 21.12.1995. 5. Would then that attachment (in O.S. No.94 of 1989) revive on defendant purchasing that property from respondent No.1-decree holder/auction purchaser in O.S.No.1156 of 1991 on 11.03.1997? Learned counsel contended so, but did not point out any provision of law or authority in favour of that proposition. I **W.P(C) No.20245 of 2010** -: 7 :- stated that attachment in O.S. No.94 of 1989 fell to the ground and ceased to have effect by the court sale in O.S. No.1156 of 1991 on 21.12.1995. If so, question of its revival thereafter does not arise. It made no difference that after the attachment in O.S. No.94 of 1989 ceased to have effect, respondent No.1 who purchased the property free of the earlier attachment transferred property to the defendant. Defendant can only be treated as an assignee from respondent No.1-decree holder who purchased the property in court auction free from prior attachment. Defendant got valid title over the property from respondent No.1-decree holder. There is no case for petitioner that after defendant purchased the property from respondent No.1 it was attached. Hence the contention that on respondent No.1-decree holder in O.S. No.1156 of 1991 transferring the property to the defendant on 11.03.1997 attachment which ceased to exist by the court sale in O.S. No.1156 of 1991 on 21.12.1995 revived, cannot be accepted. In the circumstances validity of transfer made by the defendant to respondent No.9 the next day of her acquiring property is not a matter to be considered in this proceeding. 6. On other grounds also E.A.No.1563 of 2009 cannot be sustained. Proviso to Order XXI Rule 58(1) of the Code states that ## **W.P(C) No.20245 of 2010** ## -: 8 :- no claim or objection shall be entertained if the claim or objection is preferred after the property attached has been sold. Claim as per E.A. No.1563 of 2009 was made after the court sale in O.S. No.1156 of 1991 and the issue of sale certificate. Hence executing court could not entertain the application and the claim made thereunder. 7. Learned counsel for petitioner made an attempt to save the situation contending that E.A.No.1563 of 12009 is filed under Sec.151 of the Code which is not subject to any restriction as contained in the proviso to Order XXI Rule 58(1) of the Code. Learned counsel contends that a wrong label given to the application shall not result in its rejection. I agree with the learned counsel on the proposition made. But inherent power under Sect.151 of the Code cannot be used of to circumvent a direct provision of law contained in the Code. The rule “quando aliquid prohibetur, prohibetur et Omne per quod devenitur ad illud” (i.e. whatever is prohibited by law to be done directly cannot legally be effected an indirect or circuitous contrivance) should apply. If a claim or objection is to be made in respect of a property attached, it could be done only as provided in Order XXI Rule 58 of the Code and that provision cannot be circumvented by labelling the application as one under Sec.151 **W.P(C) No.20245 of 2010** ## -: 9 :- of the Code or seeking a declaration of title as a relief. In essence E.A.No.1563 of 2009 is a claim made under Order XXI Rule 58 of the Code. That claim could not be entertained since it was made after property was sold. 8. Dismissal of E.A. No.1368 of 2003 also affected maintainability of E.A. No.1563 of 2009. E.A. No.1368 of 2003 was filed under Order XXI Rule 58 of the Code challenging the court sale in O.S. No.1156 of 1991. That ended in a dismissal on 21.10.2009. It is thereafter that petitioner filed E.A.No.1563 of 2009 with an ingenuous plea for declaration of right of petitioner based on the attachment before judgment on 31.03.1989 and to stay all proceedings in execution. In both the applications challenge is to the court sale in O.S. No.1156 of 1991. Hence dismissal of E.A.No.1368 of 2003 barred filing of a second application substantially for the same relief. Points are answered as above. ## Writ Petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv