Mohammedunny Azeez and Another vs M/s. Gopal Company and Others

Bhat, J.—Respondents herein obtained a money decree against the judgment-debtor by name K. Abdulla. Pending suit there was an attachment before judgment of the immovable property belonging to the original judgment debtor. The attachment before judgment was effected on 25-3-1983. Decree-holder filed E. A. 289/86 for appointment of receiver for the building situated in the attached properties and to collect the income particularly from the tenants in possession. The application was objected by judgment debtors 2 and 5. Overruling the objections the court ordered appointment of receiver. At that stage, on behalf of the appellants their power-of-attorney holder filed E. A. No 454/86 praying that the order of appointment of receiver may be set aside. They contended that as per registered document No. 1296/84 legal representatives of the original judgment-debtor had sold the entire property to them for a consideration of Rs. 6 lakhs. The court below dismissed the application. Hence this appeal. The amount claimed in the execution petition is Rs. 17695-31. Though the immovable property belonging to the judgment-debtor had already been attached before judgment, decree-holder successfully sought appointment of receiver for the building which fetches considerable amount of rent. This was done overruling the objections of two of the legal representatives of the deceased judgment-debtor. It appears that the attachment was not noticed in Ext A4 encumbrance certificate. P W 1 claims to be the power-of-attorney holder of the appellants who filed claim petition and sought the order appointing receiver to be vacated. That was on the strength of sale deed No 1296/84 allegedly executed in their favour by the legal representatives of the judgment-debtor Ext A1 is only a Photostat copy of the sale deed. It is not a certified copy P W. 1 has no personal knowledge about the document in as much as he is not a witness. It is significant to note that the claimants are none other than the sons-in-law of the deceased judgment-bettor. According to P W. 1. total monthly rent of the building is Rs. 4,150/-. Ext B1 is the attachment order and Ext B2 is a copy of the attachment schedule and Ext B3 is a copy of the order. These documents show that there was attachment before judgment on 23-3-1983. There is no doubt that the sale deed in favour of the appellants came into existence long after the attachment before judgment was effected, thereby attracting the provisions of Section 64 of the C. P. C.

Section 64 of the Code reads thus:

Where an attachment has been made, any private transfer or delivery of the property attached or of any interest there in and any payment to the judgment-debtor of any debt, evident or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.

The purport of this section in so far as if relates to this case is that where there is an attachment, private sale shall be void as against all claims enforceable under the attachment. Learned counsel for the appellants would contend that section 51 of the Code lays down four methods of execution of the decree, by delivery of any property, by attachment and sale or by sale without attachment of any property, by arrest and detention in prison and by appointing receiver; it also contemplates execution in such other manner as the nature of the relief granted may require. It is argued that appointment of receiver is, though one of the methods of execution of decree does not arise within the procedure of attachment and sale of the property. Counsel for the appellants would have it that by virtue of section 64, decree holder will be enabled only to bring the property to sale in pursuance of the attachment and cannot seek appointment of receiver. This is a case where long after the attachment before judgment was effected, ''legal representatives'' of the judgment-debtor sold the property to the sons-in-law of the judgment-debtor for a consideration, of Rs. 6 lakhs and without reserving the decree amount as a debt. Hence by virtue of section 64 sale shall be void as against all claims enforceable under the attachment. The controversy in this case has to be resolved on an interpretation of the word claim enforceable under the attachment. ''Claim'' means ''demand for something supposed due, to demand as a right''. Claim of the decree-holder is for payment of decree amount. That is the claim under attachment also. The claim is for payment of the amount decreed. That claim attaches to the attachment by virtue of section 64 and a private sale cannot nullify the claim. There is nothing in section 64 of the Code to indicate that the words ''claim under attachment'' indicate the right to bring the property to sale. The words only indicate the right to decree amount. If that be so, the court cannot restrict the decree-holder''s remedy. The property can be proceeded against by other methods known to law; one of such methods is by appointment of receiver. We are therefore of the opinion that order of appointment of receiver is valid and cannot be set aside. The appellants cannot therefore succeed in the appeal. The appeal is dismissed.