Order XXI Rule 58 of the CPC. In the entire application, there is no whisper and/or averment and/or pleadings that the petitioner is the bona fide purchaser and that there was an oral agreement prior to the order of attachment and that the part sale consideration/sale consideration of Rs.4,00,000/- was paid prior to the order of attachment. To get the benefit of sub-section (2) of Section 64 of the CPC, the objector and/or subsequent purchaser has to plead and prove that he is the bona fide purchaser, who has entered into the transaction prior to the order of attachment.

advocatemmmohan

Code of Civil Procedure, 1908 — Section 64(2) — Bona fide purchaser prior to attachment — Pleading and proof mandatory.
To claim protection under Section 64(2) of the Code of Civil Procedure, 1908, the objector/subsequent purchaser must specifically plead and prove that he is a bona fide purchaser for value who entered into the transaction prior to the order of attachment. Absence of such pleadings disentitles the claimant from relief. (Order, Paras 2–4).

Order XXI Rule 58 CPC — Objection to attachment — Foundational pleadings essential.
In proceedings under Order XXI Rule 58 CPC, the objector must clearly aver material facts establishing his independent right, title or interest in the attached property. Reliance on documents at the stage of argument without foundational pleadings is impermissible. (Order, Paras 3–4).

Oral agreement to sell — Subsequent registered sale deed — No protection without pleadings.
Even where reliance is placed on an alleged prior oral agreement to sell and part payment before attachment, the benefit of Section 64(2) CPC cannot be claimed unless such facts are pleaded in the application before the executing court. (Order, Paras 2–4).

Attachment before sale — Executing Court and High Court — No interference warranted.
Where the executing court and the High Court concurrently reject the objection for want of necessary pleadings and proof, no ground for interference under Article 136 of the Constitution is made out. (Order, Para 5).

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RATIO DECIDENDI

The ratio of the order is that protection under Section 64(2) of the Code of Civil Procedure, 1908, which safeguards transfers made prior to attachment, is available only when the claimant specifically pleads and proves that he is a bona fide purchaser for value who entered into the transaction before the order of attachment.

In the absence of such foundational pleadings in the application under Order XXI Rule 58 CPC, the claimant cannot rely on documents or arguments at a later stage to establish bona fides. Consequently, the rejection of the objection by the executing court and its affirmation by the High Court warranted no interference, and the Special Leave Petition was dismissed.