TMI Blog1990 (3) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is in dispute in this appeal was agreed to be sold in favour of the appellant under an agreement dated October 9, 1978. Before the sale deed was executed, a third party in execution of a decree got the property attached on November 16, 1978. The sale deed was executed on November 23, 1978. The question is: Does the sale prevail over the attachment? 3. The High Court of Kerala in the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant statutory provisions bearing on the question. Order 38 Rule 10 of the CPC provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit. Under Section 40 of the Transfer of Property Act, a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramma Aiyar and Ors. AIR 1935 Mad. 872 and Angu Pilliai v. M.S.M. Kasiviswanathan Chettiar AIR1974Mad16 . 6. There is a useful parallel from the decision of the Calcutta High Court in Purna Chandra Basak v. Dautai Ali Mollah AIR1973Cal432 wherein it was observed that the attaching creditor attaches only the right, title and interest of the debtor and attachment cannot confer upon him any higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and must be regarded as void against the claim of the attaching creditor. In support of this proposition, Section 64 of the CPC was relied upon which according to the High Court was intended to protect the attaching creditor against private alienation. This was also the observation of the Lahore High Court in Buta Ram and Ors. v. Sayyed Mohammad AIR 1935 Lah 71. 9. In our opinion, the view tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor. We cannot, therefore, agree with the view taken by the Punjab and Haryana High Court in Mohinder Singh's case AIR 1971 P ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
