Order XXI Rule 58 CPC — Claim petition — Burden of proof. A claimant seeking release of attached property must establish bona fide acquisition under a transaction protected by law. A subsequent purchaser who fails to prove a pre-attachment registered contract is not entitled to protection under Section 64(2) CPC. (Paras 19, 20) Held: The sale deed dated 27.01.2020 executed after attachment was void under Section 64(1) CPC. Section 64(2) CPC was inapplicable as there was no registered agreement in favour of the claimant prior to attachment. The dismissal of the claim petition by the executing court was justified and the appeal was liable to be dismissed. (Paras 30 to 32) Cases referred:

advocatemmmohan

A.S. No.696 of 2025, decided on 19.01.2026
Per Ravi Nath Tilhari, J.

Code of Civil Procedure, 1908 — Section 64(1) & 64(2) — Attachment before judgment — Sale after attachment — Claim petition under Order XXI Rule 58 CPC — Scope of saving under Section 64(2).

Where the property was attached on 25.07.2017 and the sale deed in favour of the claim petitioner was executed on 27.01.2020, the transfer is void as against the decree holder under Section 64(1) CPC. To claim the benefit of Section 64(2), the claimant must establish that the transfer was made pursuant to a contract for transfer entered into and registered prior to attachment. In the absence of any such agreement in favour of the claimant, the subsequent sale is not protected. (Paras 15, 16, 18, 19, 20, 30)

Agreement of sale-cum-GPA executed after attachment — Effect.

An agreement of sale-cum-General Power of Attorney executed after the order of attachment cannot constitute a pre-attachment contract contemplated under Section 64(2) CPC. Where the GPA itself is subsequent to attachment, the sale executed pursuant thereto does not escape the statutory prohibition. (Paras 18, 23, 30)

Power of Attorney — Nature of rights created — Transfer of immovable property.

A General Power of Attorney does not convey title or create any right, title or interest in immovable property. It merely creates an agency authorising the donee to act on behalf of the principal. Consequently, a GPA holder executing a sale deed acts only as an agent of the owner and not as the owner himself. (Para 23)

Mortgage prior to attachment — Subsequent sale by GPA holder — Relevance.

The mere fact that the mortgage in favour of a finance company was created before attachment does not save a subsequent sale where the mortgagee does not exercise an independent statutory power of sale and merely executes the sale deed as power of attorney holder of the judgment debtor. In such circumstances, the prior mortgage is irrelevant for attracting Section 64(2) CPC. (Paras 22, 23, 28, 29, 30)

Transfer of Property Act, 1882 — Section 69 — Mortgagee's power of sale.

A mortgagee can exercise power of sale without intervention of the Court only in cases falling within Section 69 T.P. Act. Unless the mortgage deed confers such power and the statutory requirements, including notice, are satisfied, the mortgagee cannot claim to have effected a valid sale under Section 69. (Paras 25 to 28)

Order XXI Rule 58 CPC — Claim petition — Burden of proof.

A claimant seeking release of attached property must establish bona fide acquisition under a transaction protected by law. A subsequent purchaser who fails to prove a pre-attachment registered contract is not entitled to protection under Section 64(2) CPC. (Paras 19, 20)

Held: The sale deed dated 27.01.2020 executed after attachment was void under Section 64(1) CPC. Section 64(2) CPC was inapplicable as there was no registered agreement in favour of the claimant prior to attachment. The dismissal of the claim petition by the executing court was justified and the appeal was liable to be dismissed. (Paras 30 to 32)

Cases referred:

1. Dokala Hari Babu v. Kotra Appe — 2022 LiveLaw (SC) 345.
2. Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana.
3. Narandas Karsondas v. S.A. Kamtam.
4. Om Prakash Garg v. Ganga Sahai.