T.V. Ramakrishnan, J.@mdashThe question arising in this Execution Second Appeal is whether the obstruction put up by the original appellants and original respondents 2 to 5 in the second Appeal against the delivery sought for of 5 items of immovable properties is liable to be removed under order XXI Rule 97 of the C. P. C. as prayed for by the 1st respondent in the appeal. The execution court upheld the obstruction The appellate court on the other hand has reversed the decision of the execution court and has ordered removal of the obstruction. The judgment thus passed by the appellate court is under challenge in this appeal. The subject matter in dispute is five items of immovable properties having a total extent of 7 acres. The said properties originally belonged to tone Thirumalayandi Pillai. He mortgaged the said properties along with other items of properties in favour of one Meeya Pillai. Meeya Pillai filed a suit, O. S. No. 179 of 1954, Sub Court, Trivandrum, to realise the mortgage amount by the sale of the mortgagd properties. On. 25-6-1957 a compromise decree as evidenced by Ext.X9 was passed in the suit. As per the compromise decree the judgment - debtor Thirumalayandi Pillai surrendered possession of the decree schedule items 14 to 18, which are the properties in dispute in the Second Appeal to the decree-holder to be enjoyed by him in lieu of the interest of the decree debt with the condition that the judgment-debtor could discharge the agreed decree debt of Rs. 35, 500/- within one year from the date of the decree and get back possession of the properties and on default; the decree-holder may sell the properties and realise the decree debit.
2. While so the 1st respondent in the Second Appeal filed O. S. No. 18 of 1957 a simple suit for realisation of money against Thirumalayandi Pillai on 5-10-1957. In the suit an attachment before judgment of the properties in dispute and other items of properties belonging to Thirumalayandi Pillai was obtained on 15-10-1957. The suit ultimately decreed on 16-12-1957.
3. Meanwhile the properties in dispute were sold in proceedings initiated under the Revenuy recovery Act for arrears of Sale Tax due from the defendant Thirumalayandi Pillai on 23-3-1960 for Rs. 1060/- . The properties sold were purchased by one Madhavan Pillai. The said revenue sale was confirmed on 22-5-1963, as evidenced by Ext.X6 confirmation proceedings.
4. Thereafter on 28-2-1963 Thirumalayandi Pillai purported to assign all his rights over the properties in dispute as per Exts. X1, X2, X3 and two other sale deeds in favour of the appellants directing them to discharge the decree debt in O. S. 179/54. The appellants thereafter discharged the whole decree debt in O. S. 179/54 on 3-3-67 as evidenced by Ext.X8 certificate of satisfaction of the decree filed by the legal representatives of Meeya Pillai. According to the appellants they obtained possession from the legal representatives of Meeya Pillai only on discharge of the decree debt in O. S. 179/54.
5. As per Ext. X7 dated 4-3-1967 sale deed the appellants obtained an assignment of the entire rights of Madhavan Pillai the auction purchaser in the Revenue sale. Thus the appellants have claimed independent title and possession to the properties in dispute on the basis of Ext. X6 to X8 documents.
6. According to the appellants, it was while they were thus in-enjoyment of the disputed properties, that the 1st respondent had in execution of the decree in O.S. 18/57 brought the properties in dispute to sale and purchased the same in court auction. The sale was confirmed on 22-5-72. A sale certificate was accordingly issued to the appellants. The properties in dispute are item 11, 1.66 acres of item 12 and item 13 to 15 in the sale certificate. On the basis of the sale certificate issued, delivery was sought for. Accordingly delivery was ordered. According to the appellants they came to know about the sale of the properties only on 27-7-73 when Amin under orders of court attempted to effect delivery of the properties. They resisted the delivery along with respondents 2 to 5 who were persons in occupation of the buildings in the property under them.
7. The decree holder thereafter filed E. A. 659/73 for removal of obstruction under order 21 Rule 97 of the C. P. C.
8. The execution court on the basis of the oral and documentary evidence came to the conclusion that the appellants have succeeded in establishing their independent title and possession over the properties and rejected the application for removal of obstruction. The respondents preferred an appeal as A. S. 9/83 before the District Court Trivandrum. The appellate court has reversed the decision of the execution court and has directed the removal of the obstruction.
9. From the facts proved in this case it is clear that the properties in dispute were under attachment before judgment in O.S. 18/57 with effect from 15-10-57 onwards. Thereafter the properties were sold for the realisation of the arrears of Sales tax under proceedings initiated under the Revenue Recovery Act on 23-3-60. The said sale was confirmed on 22-5-63 as evidenced by Ex. X6 and one Madhavan Pillai purchased the properties. It was long after that on 10-3-72 the properties in dispute were sold in execution of the decree in O.S. 18/57 and purchased by the decree holder. The said sale was confirmed on 22-5-72. On the basis of the above proved facts it was contended by the learned counsel Sri P. Sukumaran Nair on behalf of the Appellants that by virtue of the revenue sale which took place on 23-3-60; the judgment debtor Thirumalayandi Pillai lost all his right title and interest in the properties in dispute and by the subsequent court auction sale on 10-3-72 and the purchase therein of the properties in dispute the decree holder; the 1st respondent in the appeal got no rights in the property and as such the decree holder is not entitled to get delivery of the properties in dispute in execution of the decree in O.S. 18/57. According to the learned counsel the effect of the order of attachment of the properties in dispute was only to make all private transfer or delivery of the properties attached or of any interest therein; totally void and ineffective. An order of attachment cannot have the effect of invalidating an involuntary or compulsory sale like a sale under Revenue Recovery Act by the Government for the realisation off arrears of sales tax. In the circumstances the learned counsel submitted that so long as the revenue sale stands unaffected by the order of attachment, the said sale would effectively divest Thirumalayandi Pillai of all his rights in the properties in dispute. If that is the correct legal position, the sale in execution of O S 18/57 and the purchase of the properties in dispute in that sale may not confer on the decree holder any right and title and she may not have any right to dispossess the appellants in execution of decree in O. S.18/57.
10. The learned counsel in this connect/on relied upon Section 64 of the C. P. C. and the decisions reported in Mahadeo Saran Sahu v. Thakur Prasad Singh, (1910) 6 I. C. 40 Mohammad Afzol Khan v. Abdul Rahman and others, A. I. R. 1932 P. C. 235,
11. In answer to the above argument, the learned counsel Shri. B. Krishnamani argued that the revenue sale being not a sale by a ''court'' to which the provisions of C.P.C. apply, such a sale should he considered as a private transfer for the purpose of Section 64 of the C.P.C. and as such the revenue sale in this case should be treated as void. According to the learned counsel for the respondents in all the decisions cited by the counsel for appellants it was the validity of sales through court during the subsistence of a prior attachment that was considered and it was in that connection the courts have held that the sale through court will be affected by the prior, attachment and the said principle cannot be applied to a case where the sale is not by a court to which the provisions of the C. P. C. would apply. In the circumstances, it was contended that the revenue sale in the case should be deemed as void and the court sale in favour of the first respondent is liable to be treated as fully valid to convey title to the first respondent.
12. Section 64 of the C.P.C. is in the following terms:
64. Private alienation of property after attachment to be void.-- Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Explanation. - For the purposes of this section, claims enforceable under an attachment include claims for the ratable distribution of assets.
In the light of the above provision contained in Section 64 C.P.C. it is difficult to accept the contention of the counsel for the contesting respondent. The said section only declares that private transfer of the attached property or any interest therein shall be void. In the light of the wording of the said Section, a sale under the provisions of the Revenue Recovery Act cannot be considered as a private transfer. The observations of the Calcutta High Court in Mahadeo Saran Sahu v. Thakur Prosad Singh, (1910) 6 I.C. 40 would make it clear that the revenue sale will not be affected by a prior order of attachment. Regarding the effect of an order of attachment on subsequent revenue sale the Calcutta High Court has in the decision reported in Mahadeo Saran Sahu v. Thakur Prasad Singh, (1910) 6 I.C. 40 stated thus:
...The Government is in no way bound by the attachment nor can a sale for arrears of Government Revenue be regarded as an alienation made by the proprietor....
In the light of the above observation of the Calcutta High Court with which I respectfully agree it is difficult to accept the contention of the counsel for the respondent that the sale under the Revenue Recovery Act is to be treated as a private sale for the purpose of Section 64 of the C.P.C. The learned counsel was also not able to point out any authority for his submission that all sales otherwise than by a court as contemplated in Section 63 of the C. P. C. should be considered as private transfers hit by Section 64 of the C. P. C. In the light of the coercive provision contained in the Revenue Recovery Act and in the light of the Wording of Section 64 of the C. P. C it has to be held that sale under the Revenue Recovery Act cannot be considered as a private transfer for the purpose of Section 64 of the C.P.C. declared void by that section, unless the sale is shown to be sham or a camouflage as pointed out in the decisions reported in Neelacanda Iyer v. Parameswara Kurup, AIR 1954 T.C. 176; and
13. Faced with the above situation, the learned counsel for the respondent prayed for a remand of the case giving his client an opportunity to challenge the revenue sale as a sham transaction brought about by the judgment-debtor to save the properties from the execution proceedings in O.S. No. 18 of 1957. I am afraid that I may not be justified in granting the above prayer of the learned counsel in the facts and circumstances of the case. It is admitted that so far the decree-holder has not challenged. the validity of the revenue sale on any ground whatsoever.
14. In these proceedings it has to be noted that initially obstructors have not taken any specific contention based upon the revenue sale and the matter when it reached the appellate court at an earlier stage in. A.S. No. 176 of 1978 the Appellate Court remanded the case to the execution court allowing the obstructors to raise a specific contention relating to the effect of the revenue sale vis-a-vis the prior attachment and the subsequent sale through court. Even after such a remand the respondent has not chosen to challenge the revenue sale as a sham transaction or a transaction invalid for any other, ground whatsoever. The only contention raised by the respondent was that the revenue sale will not have any effect in law in the light of the prior attachment followed by the sale through court in her favour. In the circumstances I do not find any justification for allowing the respondent, the decree-bolder, a fresh opportunity to challenge the revenue sale at this stage of the proceedings. I reject the said prayer. As already pointed out if the revenue sale is valid and effective, that would effectively divest the judgment-debtor of all his rights in the properties in dispute and the decree-holder will not get any right, title or possession over the properties in dispute based upon the subsequent sale in her favour in execution or the decree in O. S. No. 18. of 1957. In the result I hold that the decree-holder is not entitled to dispossess the appellants in execution of the sale certificate issued in her favour. The resistance offered to the delivery sought for is valid. Accordingly I allow, the appeal and restore the order of the executing court in E. A. No. 659 of 1973. The parties are directed to bear their respective costs throughout.
