Sale of Attached Property Valid: HC
The Honourable Mr.Justice K Ravichandrabaabu, in the High Court of Judicature at Madras, in his Order dated 26 April 2019, has directed a Sub Registrar in Coimbatore,not to refuse registration of the sale deed on the ground that the subject matter properties of the sale deed are under Court attachment.
The consequence of attachment of certain shares of a company held by a shareholder for purposes of sale in a proceeding under section 149 of the Land Revenue Act is more or less the same, the order relates.
Section 60 of the Code of Civil Procedure,
1908 says that except those items of property mentioned in its proviso, lands, houses or other buildings, goods, money, bank-notes, cheques, .... belonging to a judgment-debtor, ... or by another person in trust for him or on his behalf, is liable for attachment and sale in execution of a decree against him.
Section 64 of the Code of Civil Procedure,1908, states that where an attachment of a property is made, any private transfer or delivery of the property attached ...contrary to such attachment, shall be void as against all claims endorceable under the attachment.
Thus, what is forbidden under Section 64 of the Code of Civil Procedure is a private transfer by the judgment-debtor of the property attached contrary to the attachment, that is, contrary to the claims of the decree holder under the decree for realisation for which the attachment is effected, the order clarifies
Hence, a private transfer under Section 64 of the Code of Civil Procedure is void only as against the claims enforceable under the attachment, the order states.
Until the property is actually sold the judgment debtor retains title in the property attached, observes the court. Until such sale is effected, all othe rights of the judgment debto remain unaffected even if the (property) may have been seized by the officer of the court under Rule43 of Order 21 of the Code of Civil Procedure, 1908 for the purpose of effecting the attachment, or through a Receiver or though an order in terms of Rule 46 of Order2 1 of the Code of Civil Procedure may have been served on the judgment debtor concerned, the court observes.
Thus, the judge has conclusively stated of his opinion that, "the sale of the property attached cannot be construed as illegal sale."H However the judge adds that, "if the 2nd respondent bank exercises its right as against the property, the petitioner cannot raise any objection because the sale of the vendor in favour of the petitioner is void in respect of the order of attachment obtained by the 2nd respondent bank. So, even if the property is sold in favour of the petitioner, the 2nd respondent bank can always exercise its right as against the said property."
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The consequence of attachment of certain shares of a company held by a shareholder for purposes of sale in a proceeding under section 149 of the Land Revenue Act is more or less the same, the order relates.
Section 60 of the Code of Civil Procedure,
1908 says that except those items of property mentioned in its proviso, lands, houses or other buildings, goods, money, bank-notes, cheques, .... belonging to a judgment-debtor, ... or by another person in trust for him or on his behalf, is liable for attachment and sale in execution of a decree against him.
Section 64 of the Code of Civil Procedure,1908, states that where an attachment of a property is made, any private transfer or delivery of the property attached ...contrary to such attachment, shall be void as against all claims endorceable under the attachment.
Thus, what is forbidden under Section 64 of the Code of Civil Procedure is a private transfer by the judgment-debtor of the property attached contrary to the attachment, that is, contrary to the claims of the decree holder under the decree for realisation for which the attachment is effected, the order clarifies
Hence, a private transfer under Section 64 of the Code of Civil Procedure is void only as against the claims enforceable under the attachment, the order states.
Until the property is actually sold the judgment debtor retains title in the property attached, observes the court. Until such sale is effected, all othe rights of the judgment debto remain unaffected even if the (property) may have been seized by the officer of the court under Rule43 of Order 21 of the Code of Civil Procedure, 1908 for the purpose of effecting the attachment, or through a Receiver or though an order in terms of Rule 46 of Order2 1 of the Code of Civil Procedure may have been served on the judgment debtor concerned, the court observes.
Thus, the judge has conclusively stated of his opinion that, "the sale of the property attached cannot be construed as illegal sale."H However the judge adds that, "if the 2nd respondent bank exercises its right as against the property, the petitioner cannot raise any objection because the sale of the vendor in favour of the petitioner is void in respect of the order of attachment obtained by the 2nd respondent bank. So, even if the property is sold in favour of the petitioner, the 2nd respondent bank can always exercise its right as against the said property."
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