LexVANNARAKKAL KALLALATTHIL SREEDHARAN versus CHANDRAMAATH BALAKRISHNAN AND ANR.
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A V ANNARAKKAL KALLAT A THIL SREEDHARAN V. CHANDRAMAATH BALAKRISHNAN AND ANR. MARCH 6, 1990 B [K. JAGANNATHA SHETTY AND R.M. SARAI, JJ.] Code of Civil Procedure, 1908: S. 64, or 38, Rule JO-Con- veyance in pursuance of antecedent agreement for sale of attached property-Whether passes good title. The land in dispute was agreed to be sold in favour of the appel- C Ian! under an agreement. Subsequently, a third party in execution of a decree got the property attached. The sale deed was executed there- after. A question arose as to the validity of the sale. The High Court held that the sale would be subject to attachment. D Allowing the appeal by special leave, the Court, HELD: The agreement for sale creates an obligation attached to the ownership of the property. The attaching creditor is entitled to attach only the right, title and interest of the judgment debtor. Hence, if an agreement for sale is entered into before attachment, the attachment E cannot be free from the obligation so incurred, and the attaching ere- ·~ ditor will not get any right higher than the judgment debtor had on th~ date of the attachment. He cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor. [835C, 834F, 835E] F Accordingly, though s. 64 CPC is intended to protect the attach- ing creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was entered into before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. The rights of the attaching creditor shall not be allowed to override the contractual obligation arising G from the antecedenl'llgt!lement for sale of the attached property. [8350-E] Paparaju Veeraraghavayya v. Killaru Kamala Devi & Ors., AIR 1935 Mad. 193; Veerappa Thevar & Ors. v. C.S. Venkataramma Aiyar & Ors., AIR 1935 Mad. 872; Angu Pillai v. M.S.M. Kasiviswanathan Chettiar, AIR 1974 Mad. 16; Puma Chandra Basak v. Dau/at Ali H Mollah, AIR 1973 Cal. 432; Rango Ramachandra v. Gurlingappa 832 V.K. SREEDHARAN v. C. BALAKRISHNAN [SHETfY, J.] 833 Chinnappa, AIR 1941 Bom. 198; Yashvant Shankar Dunakhe v. Prayarji Nurji Tamboli, AIR 1943 Bom. 145 and Kochuponchi Varug- hese v. Quseph Lonan, AIR 1952 Travancore-Cochin467, approved. Mohinder Singh & Anr. v. Nanak Singh & Anr., AIR 1971 Pb. & Haryana 38 l, overruled. . .l.~ · The sale in the instant case would not thus be subject to the attach- - '-,,.-··· ' ment. The purchaser would get good title despite attachment. [833F, 834D] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1349 of 1990 From the Judgment and Order dated 18.8.1988 of the Kerala High Court in E.S.A. No. 23 of 1987. S. Padmanabhan and R.N. Keshwani for the appellant. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special leave granted. An extent of 80 ·cents of land which 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? The High Court of Kerala in the judgment under appeal has held that the sale would be subject to attachment. This appears from the following 0bservation: "The sale deed was executed at a time when the property was already under attachment. It is true that even before affecting attachment there was an agreement for sale by Sarojini Ramakrishnan in favour of the appellant. But the agreement for sale will not create any interest in the pro- perty. The fact that Ext. A-12 Sale deed was executed on the basis of an agreement executed before the attachment will not place the appellant in any better position. He could take the 80 cents under Ext. A-12 only subject to the attachment." A B c D E F G H A B c D E F 834 SUPREME COURT REPORTS [ 1990] 1 S.C.R. The correctness of the view taken by the High Court has been called into question in this appeal. We may first draw attention to some of the relevant statutory provisions bearing on the question. Order 38 Rule W of the Code of Civil Procedure provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties t
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