TMI Blog1970 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... them. In execution proceedings, objections were filed by the petitioners, objections were filed by the petitioners under Order 21, Rule 58, Civil Procedure Code, it being pleaded by them that the property under attachment, though originally belonging to the judgment-debtor, was possessed by them in their own right and, therefore, not liable to attachment and sale. The only issue rammed by the executing Court was to the following effect:- Whether the objectors are in possession of the property under attachment in their own right as claimed ? It was conceded on behalf of the objectors that the agreement executed in their favour did not create any interest in the property agreed to be sold in terms of Section 54 of the Transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. L. Aggarwal, learned counsel for the respondent, decree-holder, that no revision is competent. I am afraid the objection is without substance. The only provision of law that can be pleaded as a bar to the maintainability of the revision petition is Order 21, Rule 63, Code of Civil Procedure, which provides that a party against whom an order is made on objections preferred under Order 21, Rule 58 may institute a suit to establish the right which he claims to the property in dispute. But subject to the result of such a suit. If any, the order is to be conclusive. It is only the right that the decree-holder or the objector has to the property attached that can form the subject-matter of the suit. An objector in proceedings relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an appeal can be pursued, and the existence of an alternative remedy by suit under Order 21, Rule 63, does not create any such bar. In my opinion, revision in such a case can be entertained if the pre-requisites for the applicability of Section 115 of the Code of Civil Procedure are otherwise found to exist. 4. The order of the executing Court, to my mind, is wholly without jurisdiction and beyond the scope of the enquiry as envisaged in Order 21. The correctness of the finding to the effect that the objectors were possessed of the plot in their own right is not challenged by Mr. Aggarwal, learned counsel for the decree-holders, but he supports the impugned order it being urged by him that condition for payment of the unpaid sale pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is two-fold, firstly, that an agreement to sell immovable property though not creating an interest or charge on the property and secondly, where subsequent to contract to sell certain property, that property is attached by the decree-holder, and then a sale in pursuance of the contract takes place, the vendee is not a representative of the judgment -debtor within the meaning of Section 47 of the Code of Civil Procedure. The approach made by the learned Judges in that case is the same as that adopted in some decisions of the Madras High Court and also of some other Courts. The earliest of the decisions following this view was Madan Mohan Dev v. Rebati Mohan Poddar 21 CWN 158 : AIR 1916 Cal 927. It is not necessary to discuss all those cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor does it create any interest in or charge on the property. The interest in the property will be transferred only when actual deed of conveyance is executed and the right to have the contract of sale specifically enforced cannot be equated with a sale. Even if the possession is transferred and beneficial enjoyment given to the prospective purchaser, the legal ownership still remains with the party promising to sell. The language of Section 64 is most unambiguous and the object of this provision of law evidently is that no private transfer or delivery of property shall be allowed to take effect against interests of the attaching creditor after it has been attached. A transfer, if so made during the continuance of the attachment, is, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier to the attachment the sale was not competed. The contrary view can lead to an abuse as well. An unscrupulous debtor might execute an agreement to sell knowing well that his creditor would presently institute a suit and get the property attached. There can be another abuse also; a decree has been passed against a debtor but execution not taken out. The debtor executes an agreement to sell and when attachment is effected afterwards in execution of the decree, he sells the property by a private sale. The whole object of Section 64 can then be rendered nugatory by the contrary interpretation, and the property of the debtor which could be attached and sold in execution of the decree not made available for the satisfaction of the debt. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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