Code of Civil Procedure, 1908 – Section 64(1) & (2) – Effect of attachment – Private transfer after attachment – Void – Exception under sub-section (2) – Requires prior registered contract in favour of transferee – Not satisfied – Para 14–20, 30
Order XXI Rule 58 CPC – Claim petition in execution – Subsequent purchaser after attachment – Burden to plead and prove bona fide prior contract – Failure – Claim rightly rejected – Para 19–20
Transfer of Property Act, 1882 – Section 69 – Mortgagee’s power of sale – Sale must be in exercise of statutory power – Sale by GPA holder of mortgagor not sale by mortgagee – Para 25–29
Power of Attorney – Nature – Not an instrument of transfer of title – Suraj Lamp principle applied – Para 23
FACTUAL MATRIX
Money decree passed on 23.09.2019 in O.S. No.289 of 2017.
Property attached on 25.07.2017 (effected 05.08.2017).
Appellant filed claim petition under Order XXI Rule 58 CPC in E.P. No.56 of 2020.
Documents relied upon:
Mortgage dated 30.07.2016 (prior to attachment).
Agreement of Sale-cum-GPA dated 11.09.2018 (post-attachment).
Sale Deed dated 27.01.2020 (post-attachment).
Claim petition dismissed by Principal District Judge on 29.10.2025 applying Section 64(1) CPC.
ISSUES
Whether the sale deed dated 27.01.2020 is protected under Section 64(2) CPC?
Whether prior mortgage dated 30.07.2016 saves the subsequent sale?
Whether the transfer can be treated as valid exercise of mortgagee’s power of sale under Section 69 T.P. Act?
COURT’S ANALYSIS
I. Scope of Section 64 CPC (Para 14–16)
Section 64(1):
Any private transfer of attached property after attachment is void as against claims enforceable under attachment.
Section 64(2):
Exception applies only when:
Transfer is pursuant to a contract;
Contract was entered into and registered;
Contract is prior to attachment.
This is a strict statutory exception.
II. Application to Present Case (Para 17–20)
Undisputed chronology:
Attachment: 25.07.2017
Agreement of Sale-cum-GPA: 11.09.2018
Sale Deed: 27.01.2020
Findings:
No agreement in favour of appellant prior to attachment.
Sale deed executed after attachment.
Therefore, Section 64(2) not attracted.
Relied upon:
Dokala Hari Babu v. Kotra Appe (2022 Livelaw (SC) 345) – Bona fide purchaser must prove prior transaction before attachment.
III. Mortgage Argument Examined (Para 22–29)
Appellant contended:
Mortgage dated 30.07.2016 precedes attachment.
Sale pursuant to mortgage is saved.
Court rejected:
Sale was not by mortgagee exercising statutory power.
Sale executed by mortgagee as GPA holder of mortgagor.
GPA-cum-agreement dated 11.09.2018 itself post-attachment.
Applying:
Suraj Lamp & Industries v. State of Haryana (2012) 1 SCC 656 – GPA does not convey title.
Narandas Karsondas v. S.A. Kamtam (1977) 3 SCC 247 – Mortgagee’s power of sale governed strictly by Section 69 T.P. Act.
No compliance with Section 69 requirements shown.
Thus:
Mortgage prior to attachment irrelevant.
Sale not in exercise of statutory mortgagee power.
CONCLUSIONS (Para 30)
Sale deed dated 27.01.2020 executed after attachment.
No prior registered contract in favour of appellant.
Section 64(1) attracted.
Section 64(2) not applicable.
Sale deed void against attachment.
Impugned order justified.
Appeal dismissed.
RATIO DECIDENDI
A transfer of attached property made after the order of attachment is void under Section 64(1) CPC. The saving under Section 64(2) CPC is available only where the transfer is in pursuance of a contract entered into and registered prior to attachment. A subsequent sale executed by a mortgagee acting merely as power of attorney holder of the judgment debtor, based on a post-attachment agreement, does not attract the statutory protection, nor does a prior mortgage automatically validate such transfer unless the sale is in strict compliance with Section 69 of the Transfer of Property Act.
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