Code of Civil Procedure, 1908 — Section 64(1) & (2) — Transfer after attachment — Void — Exception under sub-section (2) — Pre-attachment registered contract mandatory. A private transfer of attached property made after the order of attachment is void as against claims enforceable under the attachment in terms of Section 64(1) CPC. Protection under Section 64(2) CPC is available only where the transfer is made in pursuance of a contract for transfer entered into and registered prior to the attachment. In absence of such registered pre-attachment contract in favour of the claimant, the subsequent sale deed is void. (Paras 14–20, 30).

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Code of Civil Procedure, 1908 — Section 64(1) & (2) — Transfer after attachment — Void — Exception under sub-section (2) — Pre-attachment registered contract mandatory.
A private transfer of attached property made after the order of attachment is void as against claims enforceable under the attachment in terms of Section 64(1) CPC. Protection under Section 64(2) CPC is available only where the transfer is made in pursuance of a contract for transfer entered into and registered prior to the attachment. In absence of such registered pre-attachment contract in favour of the claimant, the subsequent sale deed is void. (Paras 14–20, 30).

Relied on: Dokala Hari Babu v. Kotra Appa Rao.

Order XXI Rule 58 CPC — Claim petition — Burden on claimant — Subsequent purchaser.
A claim petition under Order XXI Rule 58 CPC challenging attachment must establish a valid and subsisting right, title or interest. A sale deed executed after attachment, not protected under Section 64(2) CPC, cannot defeat the decree holder’s rights. (Paras 4–10, 30).

Agreement of Sale-cum-GPA — No conveyance of title.
A GPA-cum-agreement of sale does not convey title. A power of attorney is merely an agency and not an instrument of transfer of immovable property. (Para 23).

Relied on: Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana.

Mortgage prior to attachment — Subsequent sale — Not automatically saved.
Existence of a mortgage prior to attachment does not save a subsequent sale unless the transfer is effected in accordance with law by the mortgagee under Section 69 of the Transfer of Property Act, 1882 or pursuant to a registered pre-attachment contract. A sale by the mortgagor through a GPA holder after attachment remains void under Section 64(1) CPC. (Paras 22–29, 30).

Relied on:
Om Prakash Garg v. Ganga Sahai
Narandas Karsondas v. S.A. Kamtam

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RATIO DECIDENDI

The Division Bench held that:

1. The sale deed in favour of the appellant was executed after the order of attachment dated 25.07.2017.

2. There was no contract for sale in favour of the appellant entered into and registered prior to attachment, so as to attract the saving clause under Section 64(2) CPC.

3. The GPA-cum-agreement relied upon was itself post-attachment and did not confer title.

4. The sale deed was executed by the judgment debtor through a GPA holder and not by the mortgagee in exercise of statutory power under Section 69 of the Transfer of Property Act.

5. The pre-attachment mortgage did not render the subsequent sale immune from Section 64(1) CPC.

Accordingly, Section 64(1) CPC was held applicable, rendering the sale deed void as against the decree holder’s attachment. The dismissal of the claim petition under Order XXI Rule 58 CPC was affirmed, and the Appeal Suit was dismissed.