C. Subramanian vs N. Chocklingam Asari and Annamalai

D. Hariparanthaman, J.—This Civil Miscellaneous Second Appeal is directed against the judgment and decree dated 14.10.2009 passed in

C.M.A. No. 64 of 2007 by the First Additional District Judge, Tirunelveli confirming the order dated 12.10.2007 passed in E.A. No. 952 of 2006

in E.P. No. 165 of 2006 in O.S. No. 190 of 2002 by the Principal Sub Judge, Tirunelveli.

The brief facts leading to the filing of this appeal are as follows:

(a) The first Respondent herein filed a suit in O.S. No. 190/2002 before the Second Additional Sub-Court, Tirunelveli on 20.05.2002 against the

second Respondent herein for recovery of a sum of Rs. 1,17,530.20 with interest.

He also filed an application in I.A. No. 308/2002 for attachment of the Schedule property before judgment. It is admitted that the second

Respondent appeared through counsel and gave an undertaking on 29.05.2002 to the effect that he would not alienate the property. On the basis

of the said undertaking, the application in I.A. No. 308/2002 was closed on 04.07.2002.

(b) The first Respondent made a paper publication on 23.05.2003 about the aforesaid undertaking given by the second Respondent. Since the first

Respondent apprehended that the second Respondent had an intention to alienate the property, despite the undertaking, he filed another

application on 29.08.2003 in I.A. No. 399/2003 for attachment.

(c) The Trial Court passed an order of attachment on 03.09.2003 in I.A. No. 399/2003 and the attachment was made absolute on 16.09.2003.

Later, the suit was decreed on 09.12.2005.

(d) Based on the decree, the first Respondent filed a petition in E.P. No. 165/2006 in O.S. No. 190/2002 before the Sub-Court, Tirunelveli

against the second Respondent for bringing the Schedule property for sale.

(e) When the sale notice was affixed on the Schedule property on 31.07.2006, the Appellant herein filed an application in E.A. No. 952/2006 in

E.P. No. 165/2006 in O.S. No. 190/2002 under Order 21 Rule 58 and 151 C.P.C seeking declaration that he has title over the property and to

raise the attachment. The claim of the Appellant was on the ground that he was a bonafide purchaser and that he was not aware of the undertaking

given by the second Respondent. The Appellant also claimed that when the second Respondent executed the sale deed on 07.08.2003 in favour

of the Appellant, attachment was made only on 03.09.2003 and that therefore, it could have no effect. But the Trial Court rejected the claim made

by the Appellant vide order dated 12.10.2007.

(f) Thereafter, the Appellant filed a Civil Miscellaneous Appeal in C.M.A. No. 64 of 2007 before the First Additional District, Tirunelveli. The

same was dismissed on 14.10.2009 confirming the order dated 12.10.2007 passed in E.A. No. 952/2006 in E.P. No. 165/2006 in O.S. No.

190/2002. Challenging the same, the present Civil Miscellaneous Second Appeal is filed.

Heard both sides.

The learned Counsel for the Appellant raised the following substantial questions of law.

(i) Whether the Courts below committed error in holding that the order of attachment passed on 03.09.2003 in I.A. No. 399/2003 would have a

binding effect despite the execution of sale deed on 07.08.2003 in Ex.P-5 by the second Respondent in favour of the Appellant, by ignoring

Section 47 of the Indian Registration Act and applying Section 64(2) Code of CPC ?

(ii) Whether the Courts below committed error in holding that the undertaking given by the second Respondent in I.A. No. 308/2002 that he will

not alienate the property is binding on the Appellant as if the undertaking amounts to order of attachment before judgment though the Appellant is a

bonafide purchaser ?

ISSUE No. 1 Admittedly, the sale deed executed by the second Respondent in favour of the Appellant was registered only on 30.09.2003 after

the attachment of the property in issue was made on 03.09.2003 in I.A. No. 399/2003. However, it is contended by the learned Counsel for the

Appellant that the registration should relate back to 07.08.2003, since the document was executed and presented on 07.08.2003 before the

registering authority. I am unable to subscribe to the submissions made by the learned Counsel for the Appellant in view of Section 64(2) CPC.

The reliance placed on by the learned Counsel for the Appellant on Section 47 of Indian Registration Act is not correct and on the other hand,

Section 64(2) Code of CPC makes it very clear that the registration of sale deed made subsequent to the attachment would have no effect.

Amendment was made to Section 64 Code of CPC by introducing Sub-Section 2 to Section 64. In this regard, Section 64 Code of CPC is

extracted hereunder:

Private alienation of property after attachment to be void.

[(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to

the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the

attachment.

(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of

any contract for such transfer or delivery entered into and registered before the attachment.]

But for amendment to Section 64 CPC, the unfortunate decree holder would have resorted to filing of a suit for declaration that the transfer

made by the judgment debtor in favour of the claim Petitioner is fraudulent u/s 53 of the Transfer of Property Act. This situation is now remedied

by the introduction of Section 64(2) CPC. Hence the claim Petitioner could not rely on the execution of sale deed before the attachment, while the

actual registration took place after attachment. In this case, it is still worse that the second Respondent judgment debtor gave a solemn undertaking

before this Court and later chose to alienate the property in direct contravention to his own undertaking.

The reliance placed on by the learned Counsel for the Appellant on the judgment of the Honourable Apex Court in Hamda Ammal Vs.

Avadiappa Pathar and Others, is of no use as it was decided prior to the introduction of Sub-Section 2 to Section 64 CPC. In fact, after insertion

of Sub-Section 2 to Section 64 CPC, this Court considered the effect of Section 64(2) Code of CPC in the judgment in Ramasamy Raja and

Another Vs. P. Subbayya Pillai, and held that only those transfers that were made pursuant to registration prior to attachment would be saved.

Hence, I do not find any infirmity in the orders of the Courts below in holding that since the registration took place only on 30.09.2003 subsequent

to the attachment on 03.09.2003, the alienation of property is void as per Section 64(2) CPC. The Appellant could not claim any relief against the

first Respondent contending that he was a bonafide purchaser.

If the second Respondent alienated the property in favour of the Appellant suppressing the undertaking given by him to the Court that he would not

alienate the property and also suppressing the fact of attachment of the property, he would claim damages or any other appropriate relief against

the second Respondent. The Appellant could not prevent the first Respondent in executing the decree obtained in his favour. Accordingly, issue

No. 1 is answered in favour of the first Respondent.

ISSUE No. 2 The learned Counsel for the Appellant argued that the undertaking given by the second Respondent would not bind the Appellant

as he was not aware of the same and in any event, the undertaking could not have the force of an injunction.

On the other hand, the learned Counsel for the first Respondent placed heavy reliance on the judgments of the Honourable Apex Court in Bank

of Baroda v. Sadruddin Hasan Daya reported in AIR 2004 SC 942 and the judgment of this Court in A.B. Gurumurthi Chetty v. Sella Perumal

Pillai reported in AIR 1936 MAD 651 and vehemently contended that the undertaking given by the second Respondent has the force of an

injunction.

It is not in dispute that the second Respondent gave an undertaking on 29.05.2002 in I.A. No. 308/2002 that he will not alienate the property.

It cannot be said that such an undertaking could be ignored, otherwise there is no purpose in recording an undertaking by a Court and closing the

application for attachment. As rightly contended by the learned Counsel for the first Respondent, the Honourable Apex Court has considered the

effect of undertaking given to the Court in the case of Bank of Baroda v. Sadruddin Hasan Daya reported in AIR 2004 SC 942 and quoted the

following from Halsbury''s Laws of England with approval.

An undertaking given to the court in pending proceedings by a person or corporation (or by a Government Department or Minister of the Crown

acting in his official capacity) on the faith of which the court sanctions a particular course of action or inaction has the same force as an injunction

made by the court and a breach of the undertaking is misconduct amounting to contempt. Therefore an undertaking given by the party before the

court amounts to an order of injunction issued by the court.

Further, this Court also considered the effect of undertaking given by a party in the judgment in A.B. Gurumurthi Chetty v. Sella Perumal Pillai

reported in AIR 1936 Mad 651 in the following words:

........ Soon after the filing of the suit, the Plaintiff applied for attachment before judgment of a certain sum of money lying with the Public Works

Department to the credit of the Defendant. In that connexion the Defendant filed an affidavit on 29th November 1933 undertaking to draw the bill

amount and to deposit the same in Court pending disposal of this petition without utilising it for his other purposes. The Plaintiff was not prepared

to accept this undertaking because he was not sure what the Defendant would do once he drew the money. That this apprehension was well

founded is shown by the events that have subsequently happened. When the attachment application came on for orders before the Court on 29th

itself, it appears that the Defendant''s vakil modified the undertaking in the affidavit and substituted an undertaking not to draw the cheque amount

pending further orders of the Court on the petition. The vakil took care to add that as the party was not present in Court then, this undertaking was

given by him under instructions from the party. The Court recorded the undertaking and on 21st December 1933 an order was passed in the

following terms: ""Pleaders heard. Not pressed in view of the undertaking already given by Defendant. Dismissed.

I may at this stage dispose of a contention advanced by Mr. Narayanaswami Iyer on behalf of the Petitioner that the undertaking given by the

Defendant or his vakil could enure only pending the disposal of the attachment petition and with the dismissal of the petition on 21st December

1933 the undertaking itself came to an end. I am unable to accept this contention because it will not be a reasonable or even an intelligible

construction of the order. The natural meaning of the order is that an attachment is not necessary because of the undertaking given.

Hence, those judgments squarely apply to the facts and circumstances of this case and that therefore, there is no error committed by the Courts

below in holding that the second Respondent is bound by his undertaking and that he could not validly alienate the property after giving an

undertaking to the Court.

Accordingly, issue No. 2 is also answered in favour of the first Respondent.

In the result, this Civil Miscellaneous Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.