1960 (2) TMI 82 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of attachment before judgment.
2. Validity of subsequent sale deed.
3. Passing of consideration in the sale deed.
4. Rights of the auction purchaser to challenge the sale.

Issue-wise Detailed Analysis:

1. Validity of Attachment Before Judgment:
The appellate court found that the attachment before judgment was invalid due to the absence of a prohibitory order against the defendants in the money suit, prohibiting them from alienating the properties. The trial court had earlier found certain irregularities in the attachment process but did not consider them serious enough to invalidate the attachment. The appellate court, however, emphasized that the attachment was invalid due to procedural lapses under Order 21, Rule 54, C.P.C., such as the absence of a prohibitory order and lack of evidence of affixture of the copy of the proclamation in the Collector's Office.

2. Validity of Subsequent Sale Deed:
The trial court found the sale in favor of the plaintiff to be genuine and for consideration, thus passing a decree in favor of the plaintiff. However, the appellate court held that the sale was collusive and without consideration, thereby dismissing the plaintiff's suit. The appellate court's decision was based on the view that the attachment was invalid, and thus, the subsequent sale was void under Section 64, C.P.C.

3. Passing of Consideration in the Sale Deed:
The appellate court questioned the passing of consideration, relying on various circumstances and evidence. The court noted that:
- The plaintiff was closely related to the defendants.
- The sale deed did not mention any pressing circumstances for the sale.
- The sale occurred shortly after the land was attached.
- The plaintiff's financial position was questionable.
- Inconsistent statements made by the plaintiff regarding the mortgage of the suit plot.
- The plaintiff's witness, P.W. 4, was not considered reliable as he was acting on behalf of the defendants.
- P.W. 3's evidence was not taken into consideration by the appellate court, but his ignorance of the plaintiff's relationship with the defendants made him unreliable.

4. Rights of the Auction Purchaser to Challenge the Sale:
The appellate court held that the auction purchaser, defendant No. 5, could challenge the passing of consideration as he claimed through the judgment-debtors. If the attachment was valid, the subsequent sale to the plaintiff would be void, and defendant No. 5 could challenge the sale. However, if the attachment was invalid, defendant No. 5 could not challenge the passing of consideration as he would not be a successor-in-interest of the judgment-debtors.

Conclusion:
The appellate court's judgment was based on the finding that the attachment before judgment was invalid due to procedural irregularities. Consequently, the subsequent sale to the plaintiff was void under Section 64, C.P.C., and the question of passing of consideration did not arise. The appellate court also found that no consideration passed in the sale deed, supporting its decision with various circumstances and evidence. The appeal was dismissed with costs, upholding the appellate court's findings.