Vyakulam vs Arul Prakasan and Others

K.P. Balanarayana Marar, J.—Appeal is directed against the order of Sub Court, Palakkad in E.A. 93/1986 in E.P. 18/1985 in O.S. 73/1978. The decree-holder is the Appellant. The execution application was filed by 1st Respondent under Order 21 Rule 58 CPC alleging that the properly was purchased by him in court auction in execution of the decree in O.S. 337/1978 and delivery taken. Some liabilities outstanding on the property were also discharged by him. Claiming himself to be the owner of the property-he wanted the attachment made by the court in execution of the decree in O.S. 73/1978 to be released.

Appellant-decree holder contended that the properties were attached as per order in E.P. 78/1982, but there were no bidders at the time of auction and that petition was dismissed The present execution petition was thereafter filed and the properties were again attached. It was contended that he was not aware of the decree in O.S. 337/1978. He further contended that the properties are attached by him first and that the execution proceedings initiated by 1st Respondent are not binding on him.

No witness was examined on either side. Four documents were produced on the side of the claimant. The executing court on a consideration of these documents and after hearing both sides held that title to the properties had validly passed to the claimant and that the properties are not liable to be attached and sold in execution of the decree in O.S. 73/1978. In consequence the claim petition was allowed. That order is under challenge in this appeal.

It is urged on behalf of the Appellant that the properties were attached by the Appellant in execution of the decree obtained by him and the subsequent attachment and sale took place while the earlier attachment was subsisting. There is no material on record to show whether the earlier attachment was subsisting or not. Appellant had filed the execution petition in 1982, but that happened to be dismissed for want of bidders at the time of auction. The subsequent execution petition was filed only in 1985 after the sale in favour of 1st Respondent and the issue of the sale certificate. Sri Raveendran, learned Counsel for the Appellant, would point out that the claim has to be presented before the court under whose decree the property was first attached. Attention is drawn to the provisions contained in Section 63 of the Code of Civil Procedure. Sub-section (1) of Section 63 provides that where property not in the custody of any court is under attachment in execution of decrees of more courts than one the court which shall receive or realise such property and shall determine any claim thereto and objection to the attachment thereof shall be the court of highest grade, or, where is no difference in grade between such courts, the courts under whose decree the property was first attached. This sub-section only names the forum for making a claim petition or a request for rateable distribution. In case the property is attached by more courts than one, claim petition has to be preferred only in one of the courts. If such courts are of different grades, the claim petition or any objection to the attachment has to be made before the court of highest grade. When there is not difference in grade between such courts, such request has to be made before the court under whose decree the property was first attached. Provision for considering the claim petition and objection to the attachment and for distribution of the sale proceeds among the decree-holders has been made in Section 63. The principle underlying this section is the convenience of the parties. The purpose is to avoid multiplicity of proceedings and for a fair distribution of the proceeds of sale. This provision is attracted only if execution proceedings are taken in different courts against the same property. In this case execution is taken against the same property in the same court. Section 63(1) of the Code is therefore not attracted. The claim petition can be filed in the court in which the property was attached. The direction contained in Section 63(1) is, only regarding the forum for making the application. Since both the execution petitions are before the same court, the question of choosing the forum or filing the application before the court under whose decree the property was first attached does not arise.

Here is a case where the property was sold in pursuance to an attachment made by the same court. Even if, that attachment is effected since the attachment made earlier, the sale is not invalid. Section 64 of the Code prohibits only private alienation. Where an attachment has been made, any private transfer or delivery of the property attached shall be void as against all claims enforceable under the attachment. The section does not extend to involuntary transfers. A sale in pursuance to a later attachment will prevail even if the earlier attachment was in force on the date of sale. The Nagpur High Court in AIR 1944 324 (Nagpur) , held that Section 64 does not relate to sales in execution of a decree. It was also held that a sale in pursuance of a later attachment will prevail even though there is an earlier attachment in existence on the date of the sale. The Madras High Court has also expressed the same view in Thathi Naicker v. Co-operative Society, Kundalaputhur AIR 1949 Mad 649. That was a case of an award in favour of a co-operative society. It was held that the award has the force of a decree and the sale at the instance of the cooperative society under the award is not a private transfer within the meaning of Section 64. It was also observed that sale under a decree is not a private transfer.

The intention of Section 63 is not to take away the jurisdiction of civil court conferred under Rule 64 of Order 21 Under that rule any court executing a decree may order that any property attached by it and liable to sale shall be sold and the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same. Section 64 will not operate as a bar in invoking the right of a decree-holder to bring the property to sale under Rule 64 of Order 21. That right can be invoked even if the property had been attached by Anr. decree-holder earlier. That the existence of a prior attachment will not in any way invalidate the sale has been made clear in Sub-section (2) of Section 63 which provides that nothing in Sub-section (1) of that section shall be deemed to invalidate any proceeding taken by a court executing one of the decrees. The sale in favour of 1st Respondent cannot therefore be challenged for any reason. That the 1st Respondent has discharged some of the liabilities outstanding in the property since the date of delivery is also in evidence. The court below was therefore right in upholding the claim of 1st Respondent. No interference is called for.

Counsel for Appellant would point out that the judgment debtors had suppressed the fact of the earlier attachment and Appellant is now precluded from proceeding against the property. He has a further contention that the judgment debtor has contended earlier that the property is not liable to be attached and no such contention was raised in the subsequent execution petition. It is pointed out that the judgment-debtor had colluded with the 1st Respondent and got the property sold. Such an inference cannot be drawn in view of the conduct of 1st Respondent in discharging the liabilities outstanding on the property. There is no indication in the evidence to suggest that there had been any collusion. If Appellant is prevented from proceeding against the property, that is only because of the lack of diligence on his part in not proceeding with the execution petition filed earlier or in filing a fresh execution petition immediately after the previous petition was dismissed. The fact that the right to proceed against the property is lost is no reason to interfere with the impugned order.

For the reasons stated above the appeal is dismissed in limine.