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TMI Blog1990 (11) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid money suit filed by Avadiappa was also decreed in his favour. The question which calls for consideration is whether Hamda Ammal is entitled to the property sold in her favour by virtue of sale deed dated 9.9.1970 but registered subsequently on 26.10.1970, or Avadiappa has a better claim to the property on account of an attachment before judgment made on 17.9.1970 in the suit filed by him on 13.9.1970 i.e. prior to the date of registration of sale deed in favour of Hamda Ammal. 2. In order to decide the above controversy we would advert to some relevant provisions. Order 38 Rule 5 C.P.C. which provides the conditions for attachment before judgment reads as under: Order 38 Rules 5: (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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' Explanation - For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets. The above provision bans or prohibits a private transfer or delivery of the property attached or of any interest therein contrary to such attachment as void as against all claims enforceable under the attachment. The order of attachment is issued on a prescribed form No. 24 in Appendix-E to C.P.C. which prohibits and restrains defendant from transferring or charging the property by sale, gift or otherwise. Thus neither in Section 64 C.P.C. nor in the form prescribed for attachment there is any prohibition for submitting the document of sale for registration. The act of submitting the sale deed for registration which has already been executed prior to an attachment is not an act of transfer which is prohibited under the above provisions. 4. Section 54 of the Act defines Sale as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit for specific performance under Chapter II of the Specific Relief Act, 1877, or as an evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument. Thus even an unregistered document can be received as evidence for purposes mentioned in the proviso to Section 49 of the Registration Act. 6. Learned counsel for the respondents also made the submission that even if the sale deed which is executed earlier to attachment before judgment and registered subsequently may be binding on the vendors but it would not affect the rights of such respondent who is a third party, in the sense that he was not a party to the sale deed and he got the right in the property in a court sale having taken place after the passing of final decree in the money suit filed by.Avadiappa. In other words the contention is that the respondent No. 5 Shri M.S.A. Kadar got rights in the property in the court sale made in his favour after the decree passed in favour of Avadiappa in the money suit filed on 13.9. 1970. We do not find any force at all in the above sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective from the date of execution.' 8. The above case related to pre-emption based on customary law of pre-emption of Mohammedans. The question for consideration in the case was regarding the first demand called 'Talab-i- Mowasibat' which was required to be made after the completion of the sale. In that context the majority view was that the sale becomes complete when it is copied out in the registrar's book as provided in Section 61 of the Registration Act and Section 47 of the Registration Act cannot apply in such a case to hold that the sale was completed on the date of its execution. This case is not at all an authority for the controversy raised before us as it only dealt with the question as to when the sale became complete for making the first demand called Talab-i-Mowasibat' under the Mohammedan law of pre-emption. 9. In Hiralal Agrawal, etc. v. Rampadarath Singh and Ors. etc. : [1969]1SCR328 the controversy was about fixation of ceiling area and acquisition of surplus land under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act of 1962. In the above case the facts were that by a deed of sale dated October 9, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the appellant on November 26, 1964 or that the Collector had no jurisdiction on that date to accept the said application. This contention made on behalf of the appellant was negatived by placing reliance on Ram Saran Lall and Ors. v. Mst. Domini Kuer and Ors. (supra), Radhakishan L. Toshniwal v. Shridhar : [1961]1SCR248 and Bishan Sigh v. Khazan Singh : [1959]1SCR878 . The Court further observed in the above case that the question whether the right of re-conveyance had accrued to the appellant or not on November 26, 1964 appeared to be academic. It was observed in this regard that a mere presentation of the application or having handed it over to some subordinate in the Collector's office cannot mean its having been entertained by the Collector on that date. There was no merit in the contention that the Collector had entertained the application either on 26th when it was taken by the appellant to the Collector's ' office or on 28th when some subordinate in the office made an endorsement on it that it should be placed before the Collector. The endorsement on the contrary shows that the Collector had not even seen on it much less, accepted it. The Collector took cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce can be enforced must hold the property for the benefit of the party to the contract. These are equitable rights though not amounting to interest in immovable property within the meaning of Section 54 of the Transfer of Property Act which declares that a contract of sale does not create an interest in the property. On this line of reasoning it has been held by the Madras High Court that the purchaser of (sic under) an antecedent agreement gets good title despite attachment. Their Lordships then considered that the same view has been taken by the Bombay and Calcutta High Courts. The view taken by Punjab Haryana High Court in Mohinder Singh v. Nanak Singh AIR 1971 P H; 381 was overruled. It was observed as under: In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore -Cochin in the aforesaid cases appears to be reasonable and could be accepted as correct. The agreement for sale indeed creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor, the attachment cannot be free from the obligations incurred under the contract fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was registered and the right to have it registered was a right denied to the parties by sale by reason of attachment. We have already given detailed reasons for the view taken by us and the above cases taking a contrary view do not lay down the correct law. 15. It may also be mentioned that apart from the later Patna view, Nagpur High Court in Champat Rao Mahadeo v. Mahadeo Bajirao Kunbi and Others AIR 1937 Nagpur 143 also have taken the view now taken by us. 16. We do not want to burden this judgment by referring to some other cases of the High Courts which have been cited by the learned counsel for the respondent as the same do not deal with the question directly raised in the case before us. Those arc cases either under the Provincial Insolvency Act or Mohammedan Lw of Pre-emption, We may, however, make a mention of the case of Privy Council in Kalyanasundaram Pillai v. Karuppa Mooppanar and Ors. ILR 50 Madras 193 which supports the view taken by us. In the above case a Hindu executed a deed of gift of part of his immovable property and delivered it to the donee. On the following day he adopted a son. Three days later the deed was registered. It was held, that the gift wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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