Sri. Nazarulla Khan vs Pragathi Grameena Bank

K.N. Keshavanarayana

The appellant was defendant No.3 while the respondent was the plaintiff in O.S.No. 153/2005 on the file of Civil Judge (Sr.Dn.) & JMFC, at Bhadravathi.

The respondent- Pragathi Grameena Bank filed the said suit against one Shafiq Ahamed and Shanthaveerappa as defendant Nos. 1 and 2 for recovery of sum of Rs. 84,768/- with current interest inter alia contending that defendant No.1 borrowed a sum of Rs. 1 lakh for the purpose of jaggery and kirana business, for which the second defendant stood as guarantor and the defendants subsequently became defaulters and in spite of repealed demands they failed to pay the amount.

After filing of the suit, the plaintiff sought attachment before judgment of the immovable property belonging to the first defendant. The trial Court granted the said prayer and attachment of immovable property owned by the first defendant, namely property bearing Janjar No. 119. Sl.No. 129, property No.254 situated in Holehonnur Village of Bhadravathi Taluk, was duly effected. Defendant. No.1 did not appear before the trial Court in spite of service of summons. Defendant No.2 though appeared before the court foiled to file written statement. Subsequently, the appellant herein filed application before the trial Court to implead himself as party defendant inter alia on the ground that during the pendency of the suit he has purchased the aforesaid property from the first defendant under a registered sale deed dated 27.8.2008 therefore he is a person interested in the claim made by the plaintiff. The said application was allowed and he was impleaded as defendant No.3. Thereafter the appellant filed his written statement inter alia contending that he is a bonafide purchaser of the said property for value without notice of the claim of the plaintiff - Bank. The parties led evidence. The trial Court on assessment of oral and documentary evidence held that the plaintiff has proved the borrowing of loan by the first: defendant and the outstanding amount. In that view of the matter, the trial Court held that the plaintiff - Bank is entitled for recovery of Rs. 84,768/- with current and future interest.

The trial Court having regard to the fact that the third defendant claims to have purchased the property which had been attached before the judgment, after the attachment, was effected held that he has not derived any title and the sale is void in the light of Section 64 of CPC. In that view of the matter, the suit was decreed and defendant Nos.1 and 2 were jointly and severally held liable to pay the aforesaid amount. The trial Court made the attachment, before judgment effected absolute. It is against that part of the order the appellant filed appeal before the Lower Appellate Court. The Lower Appellate Court in the light of the provisions of Section 64 of CPC dismissed the appeal. It is against these concurrent judgments of the courts below, defendant No.3 is in appeal before this Court.

I have heard the learned counsel appearing for the appellant. Perused the judgments under appeal.

There is no dispute that the appellant purchased the property from the first defendant under a registered sale deed dated 27.9.2008. There is also no dispute that the respondent filed the suit in question on 11.8.2005 and the trial Court passed an order of attachment before judgment and the property said to have been purchased by the appellant was duly attached. The appellant does not dispute the fact that he purchased the property subsequent to attachment. Section 64 of CPC directs that: any transaction in respect of a property, which is subject matter of an attachment, is void. When once it is held that the appellant purchased the property, during the subsistence of attachment before judgment, in terms of Section 64 of CPC, the sale in favour of the appellant was void and he cannot take shelter on the ground that he is a bonafide purchaser for value without notice of attachment. Under these circumstances the courts below are justified in ordering attachment before judgment to be absolute. The right of the appellant if any is subject to the claim of the respondent / plaintiff.

If the appellant wants to save property for himself, it is open to him to satisfy the claim of the respondent / plaintiff. Therefore, I find no question of law much less substantial question of law in this appeal.

Therefore, the appeal is dismissed.