Case Note & Summary
Background: The appeal arose from execution proceedings initiated by the first respondent, who was the decree holder in O.S.No.289 of 2017 on the file of the Principal District Judge, Visakhapatnam. The suit was a money decree based on a promissory note dated 02.07.2016 executed by respondents 2 and 3, the judgment debtors. The decree was passed on 23.09.2019 and attained finality. The decree holder filed E.P.No.56 of 2020 for execution. In the suit, the subject property was attached by order dated 25.07.2017, effected on 05.08.2017. The appellant, a third party, filed E.A.No.328 of 2023 as a claim petition under Order XXI Rule 58 CPC, asserting title to the attached property based on Ex.A1, a certified copy of sale deed dated 27.01.2020, and Ex.A7, a photostat copy of an agreement of sale with General Power of Attorney dated 11.09.2018 between judgment debtor No.1 and Gokulam Chits and Finance Company Private Limited. Facts: The appellant claimed that the property was initially mortgaged on 30.07.2016 with the Finance Company prior to the attachment, and the sale deed in his favour was executed pursuant to that pre-attachment mortgage contract. However, the trial court dismissed the claim petition on 29.10.2025, holding that the sale deed was after attachment and the agreement of sale-cum-GPA dated 11.09.2018 was also after attachment, rendering the transfer void under Section 64(1) CPC. Legal Issues: The core questions were whether the sale deed was void under Section 64(1) CPC, whether it was saved under Section 64(2) CPC, whether a GPA-cum-agreement of sale conferred title, and whether the mortgagee's power of sale under Section 69 Transfer of Property Act applied. Arguments: The appellant argued that the mortgage deed dated 30.07.2016 was prior to attachment, and the sale deed executed by the Finance Company pursuant to that mortgage was protected under Section 64(2) CPC. He also contended that Ex.A1 was wrongly described as sale agreement instead of sale deed. The court considered the material on record. Court's Analysis: The court reproduced Section 64 CPC and held that sub-section (2) requires a private transfer made in pursuance of a contract for transfer entered into and registered before attachment. It noted that the attachment was on 25.07.2017, the alleged agreement of sale-cum-GPA was dated 11.09.2018, and the sale deed was dated 27.01.2020, all after attachment. The court relied on Dokala Hari Babu v. Kotra Appe, which required the objector to plead and prove a bona fide transaction prior to attachment. The court found no pre-attachment contract in favour of the claim petitioner. It further held, following Suraj Lamp and Industries Private Limited v. State of Haryana and another, that a power of attorney is not an instrument of transfer and does not confer title; the Finance Company executed the sale deed as GPA holder of the judgment debtor, not as mortgagee. The court also considered Section 69 Transfer of Property Act, explaining that a mortgagee's private power of sale is limited to specified mortgages and conditions, which were not satisfied. Decision: The High Court found no merit in the appellant's contentions and dismissed the appeal, confirming the trial court's dismissal of the claim petition.
Headnote
A) Civil Procedure - Attachment - Private Transfer After Attachment Void - Code of Civil Procedure, 1908, Section 64(1) - The appellant claimed title through a sale deed dated 27.01.2020, which was executed after the attachment order dated 25.07.2017, and the agreement of sale-cum-GPA dated 11.09.2018 was also after attachment. The court held that Section 64(1) renders any private transfer of attached property void as against claims enforceable under the attachment. Held, sale deed void under Section 64(1). (Paras 10, 14, 16-18, 20) B) Civil Procedure - Attachment - Exception Under Section 64(2) Requires Pre-Attachment Contract - Code of Civil Procedure, 1908, Section 64(2) - To claim protection, the private transfer must be made in pursuance of a contract for transfer entered into and registered before the attachment, and the objector must plead and prove a bona fide transaction prior to attachment. In this case, no contract for sale in favour of the claim petitioner existed before attachment; the alleged agreement Ex.A7 was after attachment. Held, benefit of Section 64(2) not available. (Paras 15-16, 19-20) C) Transfer of Property - Mortgagee's Power of Sale - Conditions for Private Sale by Mortgagee - Transfer of Property Act, 1882, Section 69 - The appellant contended that the sale deed was executed pursuant to a pre-attachment mortgage dated 30.07.2016, but the court found that the Finance Company executed the sale as power of attorney holder of the judgment debtor, not as mortgagee. Section 69 permits a mortgagee's private sale only in specified mortgages and after compliance with conditions, which did not apply. Held, transfer not saved by Section 69. (Paras 22-25)
Issue of Consideration
Whether the sale deed dated 27.01.2020 executed in favour of the claim petitioner is void under Section 64(1) CPC or saved by Section 64(2) CPC; whether a general power of attorney-cum-agreement of sale confers title; whether the transfer was made by mortgagee exercising power under Section 69 of Transfer of Property Act.
Final Decision
The High Court found no merit in the appellant's contentions and dismissed the appeal, confirming the judgment and decree dated 29.10.2025 of the Principal District Judge, Visakhapatnam, which dismissed E.A.No.328 of 2023.
Law Points
- Private transfer after attachment void under Section 64(1) CPC
- Section 64(2) exception requires pre-attachment registered contract
- GPA-cum-agreement of sale confers no title
- mortgagee's power of sale under Section 69 Transfer of Property Act is limited.
