ADVISORY NOTE

PROBLEM VI

The facts of the case states that my client-A who is the plaintiff in this case filed a suit against B
who is the defendant for recovery of sum of Rs. 5 lakhs due under promissory note. The client
obtained an attachment before judgement of a garden land on the failure of the defendant to
furnish security as per the procedure. On the date of the trial, me and my client failed to appear
before the court and hence the court dismissed the suit for default. Therefore, my client filed an
application under O.9, R.9 of C.P.C. for setting aside the order of dismissal.

The petition was allowed, and the suit was restored for the entire claim. In the meanwhile, when
the suit for setting aside the dismissal of suit was pending, the defendant sold the impugned
property i.e. the garden land to C by private sale. Therefore, my client filed an execution petition
to seek the sale of the attached property to recover the decree amount in execution proceedings.
In the above case, A seeks that if the dismissal order is revived then the attachment of property
should also be revived. Also, claims that the said property must be sold in the execution
proceedings to recover the decree amount

It can clearly be stated that the sale of the said property by defendant to C was affected during
the subsistence of attachment. Although, the attachment was ceased on dismissal of order, but
the said attachment was revived by the reason of restoration of the said case. Hence, under S.63
of C.P.C. which states that “"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 monies contrary to such attachment, shall be void as against
all claims enforceable under the attachment."1 On behalf of my client, it can be observed that the
private sale of garden land and farm house by the defendant to C is null and void under the
purview of S. 64. This provision denotes that when an attachment has been made and any private
transfer made against the interest of the plaintiff will not be valid. Hence, the transfer made by
the defendant is not applicable and the rights of the property aren’t conferred on C. Moreover,
the defendant knew that the plaintiff’s petition for setting aside the order of dismissal was
1
Civil Procedure Code 1908, S.64.

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pending and the attachment wasn’t withdrawn from the aforementioned suit. This shows the
intention of the defendant for disposing off the property either wholly or partly without the
permission and final decree or order of the court.

I would advise my client that by filing an execution petition, he would definitely be able to
restore the said property to recover the decree amount. Since, the transfer of the property to C
was void, C can’t claim any rights or interests on said property and the rights are only vested
with my client.

The objective of attachment before judgement as provided in O.38 R.6 C.P.C. is to prevent the
defendant from defeating the execution of decree that may be passed against him disposing of his
property. If he files an application for restoration and simultaneously makes an attachment before
judgment, this will safeguard his rights in the said property. Else, if the attachment lapses on the
dismissal of the suit, my client will be exposed to the risk between the period of dismissal and
filing of the appeal. In the above case also, my client immediately filed an execution petition just
after the dismissal of the suit in order to avoid the risk of lapse of attachment on dismissal of the
suit. I would advice my client to seek interim relief from the appellate court (in the execution
petition) by the way of attachment before judgement from the date of filing the appeal. My client
can contend that Order 38, Rule 6 contemplates that as long as the specific order of withdrawal
of attachment is not passed; the attachment continues to exist and any transfer in favour of
defendant would be of no effect. In the instant case, there is no specific order of ‘removal of
attachment’. Reliance has been placed that: “An attachment before judgment which ceased to be
in force with the dismissal of the suit will revive when the decree dismissing the suit is
subsequently reversed and a decree in the plaintiffs favour is passed, even by the same court or
by a superior Court and this revival will be in force from the date on which the attachment before
judgment is effected”2 It can clearly be stated from the above case that the attachment before
judgement will also be revived if the dismissal order is restored or reversed. Hence, it can be
clearly stated that the when A’s suit was restored, the attachment before judgement was also
revived. Therefore, the provision will stop the defendant from transferring or charging the
property to the third person.

2
Thampi Muhammad Abdulkhadir v. Padmanabha Pillai Paramesnwaran Pillai, AIR 1952 Tav-Co 414

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It has been noted that when any suit is dismissed, the defendant should make a petition to the
court for withdrawal of the attachment and its on the discretion of the court whether to grant such
petition until the time for filing an appeal expires. But at against that, it can cause a loss to the
plaintiff if the attachment is revoked without the specific order of the court. Hence, in the above
case also, no specific order for withdrawal of attachment of the judgment was passed, in my
opinion, in the instant case, the defendant had disposed off the garden land and farm house in
question after the suit had been restored and hence, the transfer of the property during the
pendency is unauthorized.

Even, the doctrine of Lis Pendens prohibits alienation of property when a dispute relating to the
said property is pending in the court and the person purchasing the immovable property (i.e. C in
this case) has no independent right to object or resist execution of decree. Therefore, the sale of
garden land and farmhouse is prohibited under S. 52 of Transfer of Property Act, 1882.

In conclusion, I would advice my client that the if the order for dismissal of suit is restored; then
the attachment of judgement is also revived which in turn will enable the plaintiff to realize the
amount of the decree. Now, the plaintiff can sell the garden land and farm house in execution
proceedings to recover the decree amount. Moreover, the private sale to C is null and void and
later the attachment of judgement can be sold to recover the decree amount.

SUBMITTED BY

NAME -KANIKA JAIN

ENROLMENT NO.- L17BLB052