@JUDGMENTTAG-ORDER
N.K. Patil, J.@mdashIn these Writ Petitions, the petitioners have assailed the correctness of the order dated 13.1,1992 on the file of the 1st respondent in Proceedings No. AR/8/DLS/47/91-92 ordering for attaching the property owned by them bearing Survey No. 123/2 measuring 10 acres 3 guntas (total) situated at Neerbudihal Village, Badami Taluk, Bijapur District as being arbitrary, erroneous, illegal, contrary to law, equity and justice (Annexure-M). Further, they sought quashing of the order dated 7.3.1996 on the file of the Deputy Registrar of Co-operative Societies, Bijapur in Proceedings No. DRT/APPEAL/33/92-93 confirming the order dated 13.1.1992 passed by the 1st respondent as being arbitrary, erroneous, illegal, contrary to law, equity and justice (Annexure-R).
2. The grievance of the petitioners is that, as per the agreement dated 15.7.1988, they have purchased the land bearing Survey No. 123/2 (totally measuring 10 acres 3 guntas) to an extent of 5 acres 1 1/2 guntas each situated at Neerbudihal Village, Badami Taluk, Bijapur District and the same were registered under the registered sale deeds dated 13.1.1992. The further case of the petitioners is that in pursuance of the registered agreement of sale dated 15.7.1988, there is a charge and their names have been shown in the Encumbrance Certificate at Item No.6 between 1.12.1980 to 1.4.1991 vide Annexure-C and they are in peaceful possession and enjoyment of the land in question. Be that as it may. 4th respondent herein, the -vendor of the petitioners, who was working as Secretary of the 3rd respondent-Sangha, appeared to have misappropriated some amount belonging to the 3rd respondent , and surcharge proceeding were initiated against the 4th respondent. Accordingly, an order has been passed by the competent authority on the basis that as per the audit report for the years 1988-89 and 1989-90, the 4th respondent has misappropriated the fund of the 3rd respondent. In pursuance of the said order passed against the 4th respondent, the competent authority has passed an order for attachment of two schedule lands one belonging to the 4th respondent and another belonging to the petitioners. Assailing the correctness of the impugned orders as referred above so far as it relates to an extent of 10 acres 3 guntas in Survey No. 123/2 situated at Neerbudihal Village, Badami Taluk, Bijapur District, the petitioners have presented these Writ Petitions.
3. The principal submission canvassed by the learned Counsel for the petitioners is that, the entire proceedings initiated and concluded by the authorities is contrary to Sub-section (3) of Section 103 of the K.C.S. Act, 1959. To substantiate his submission, he placed reliance on the well settled law laid down by the Apex Court reported in the case of VANNARAKKAL KALLALATHIL SREEDHARAN v. CHANDRAMAATH BALAKRISHNAN AND ANR. and submitted that the entire proceedings initiated and concluded by the competent authority against the petitioners is null and void in the eye of law. Further, he submitted that the petitioners are not parties to these proceedings and they have not been issued notice nor notified. He further submitted that the authorities have proceeded to pass the impugned orders contrary to the material on record and without verifying the fact that the title of the land in question has been passed on to these petitioners and they are the absolute owners of the land in question. Further, he was quick to point out that as a matter of fact, there is one other property to an extent of 6 acres 17 guntas standing in the name of 4th respondent in respect of which also attachment order is passed and that extent of land is more than sufficient to satisfy the award passed by the competent authority against the 4th respondent and even on this ground also, the impugned orders are liable to be set aside.
4. Per contra, the learned Counsel appearing for the 3rd respondent, interalia, contended and substantiated the impugned orders. He quick to point out that surcharge proceedings were initiated against the 4th respondent by the 3rd respondent through the competent authority in view of the misappropriation of the fund of the 3rd respondent-Sangha. To defeat the recovery to be ordered by the competent authority, the petitioners and the 4th respondent colluded each other and made the transaction and taking into consideration the conduct of the 4th respondent, the authorities have rightly passed the impugned orders. He further submitted that the petitioners have not made out any good grounds to interfere with the impugned orders and hence, the Writ Petitions are liable to be dismissed.
5. After hearing the learned Counsel appearing for both the parties and after careful evaluation of the entire original records at threadbare, the questions that arise for consideration are as follows:-
1. Whether the impugned orders passed by the authorities so far as 10 acres 3 guntas in Survey No. 123/2 situated at Neerbudihal Village, Badami Taluk, Bijapur District is sustainable under the law?
2. Whether the competent authority has passed the attachment order in respect of the land in question as envisaged under Sub-section (3) of Section 103 of the K.C.S. Act?
3. Whether the competent authority is justified in passing the order of attachment for two items of lands for satisfying the award passed by the competent authority against the 4th respondent?
6. After careful perusal of the impugned orders, it is manifest on the face of record that the authorities have committed an error of law much less illegality. It is not in dispute that there was a registered agreement of sale by these petitioners to an extent of 5 acres 1 1/2 guntas each in Survey No. 123/2 totally measuring 10 acres 3 guntas. Accordingly, their names have been entered in the encumbrance certificate at Item No. 6 vide Annexure-C. Thereafter, in the year 1992, sale deeds have been executed in favour of the petitioners and their names have been entered in the revenue records. This aspect of the matter has not been taken into consideration by the authorities. It is worthwhile to extract Sub-section (3) of Section 103 of the K.C.S. Act, 1959 which reads as follows:
"(3) Attachment made under this section shall not affect the rights, subsisting prior to the attachment of the property, of persons not parties to the proceedings in connection with which the attachment is made, or bar any person holding a decree against the person whose property is so attached from applying for the sale of the property under attachment in execution of such decree."
7. In the instant case, the petitioners'' rights have been subsisting prior to the attachment of the property and they are not parties to the proceedings in connection with which the attachment order is passed. The mandate of the said section has not been followed, by the authorities and therefore, the impugned orders cannot be sustained so far as the attachment order passed in respect of the property belonging to the petitioners. Further, the Supreme Court in the case of
"The agreement for sale indeed creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor, the attachment cannot be free from the obligations incurred under the contract for sale. Section 64 CPC no doubt was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was 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 from an antecedent agreement for sale of the attached property."
8. In view of the well settled proposition of law laid down by the Supreme Court in the case cited supra, I do not have any hesitation to set aside the impugned orders passed by the authorities so far as the land in question is concerned. Further, it is pertinent to note that the competent authority has passed the attachment order in respect of two items of land one standing in the name of the petitioners and another land belonging to the 4th respondent. It is a well settled law laid down by the Supreme Court and this Court in several matters that it is a duty cast upon the authority to pass the attachment order only to the extent of award amount. But, in the instant case, the authorities have proceeded to pass the attachment order for more than what is required. The Supreme Court in the case of ambati narasayya v. m. subba rao and anr. 1990 SC 119 has held that:
"There is a duty cast upon the Court under Order 21 Rule 64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored."
This aspect of the matter has not at all been taken into consideration by the authorities and even a portion of the land standing in the name of the 4th respondent will satisfy the award passed in favour of the 3rd respondent.
9. Having regard to the facts and circumstances of the case as stated above and having regard to the factual and legal aspect of the matter as enumerated above, the impugned orders passed by both the authorities cannot be sustained and hence, they are liable to be set aside.
10. Accordingly, these. Writ Petitions stand disposed of with the following directions:-
1. Writ Petitions are allowed. The impugned order dated 13.1.1992 in Proceedings No. AR/8/DLS/47/91-92 on the file of the 1st respondent and the order dated 7.3.1996 in Proceedings No. DRT/ APPEAL/33/92-93 on the file of the Deputy Registrar of Co-operative Societies, Bijapur only so far as it relates to Survey No. 123/2 measuring 10 acres 3 guntas situated at Neerbudihal Village, Badami Taluk, Bijapur District are hereby set aside.
2. It is needless to say that it is open for the 3rd respondent-Sangha to proceed with the attachment order passed by the competent authority in respect of another item of land belonging to the 4th respondent.
11. The learned HCGP is permitted to file his memo of appearance within two weeks from today.
