2008 PLP 1917 (YLR)

SYED ASGHAR HAIDER, J.

The respondents No.1 filed a suit for recovery under the provisions of Order XXXVII, C.P.C., it was decreed. During the course of these proceedings, the disputed property was attached vide order dated 6-6-2007. The petitioner preferred an objection petition under Order XXXVIII, rule 8, C.P.C. pleading that the attachment order be withdrawn. The respondent No.1 filed reply to this application, and thereafter, the same was dismissed. Aggrieved thereof, the present petition.

2. The learned counsel for the petitioner contended that the impugned order is fraught and fractured with errors of law and fact, the provisions of Order XXXVIII, rule 8, C.P.C. were not considered properly and thus, an illegal order was passed, therefore, the same is without jurisdiction. He relied on "Hafiz Ahmad Ali and others v. Anand Sarup and others" (AIR 1937 Allahabad 635).

3. The learned counsel for the respondent No.1 contested the assertions and submitted that the impugned order is strictly in accordance with law, the property in question was attached on 6-6-2007 and later was sold out by a sale-deed dated 16-6-2007, which was ploy to frustrate the order passed by the Court.

4. The learned counsel for the respondent No.2, submitted that he did sell the property to the petitioner.

5. I have heard the learned counsel for the parties and perused the impugned order.

6. The order clearly reflects that the property subject-matter of the dispute was attached as early as on 6-6-2007, during the pendency of the suit, which was later decreed. It also is an admitted fact that a sale-deed dated 16-6-2007 was passed after the order of attachment was passed. In these circumstances, it is clear that sale-deed was not in accordance with legal dictates and in fact, was a mode to frustrate the execution proceedings. The impugned order has dealt with and dwelt on the assertions raised today by the petitioner, the answer is in harmony and consonance with the legal dictates. Order XXXVIII, rule 8, C.P.C. pertains to inquiry, which is to be conducted of a property attached before the judgment. This inquiry of course, would be necessitated only in case, facts which have been asserted by one party denied by the other party. In the present scenario, there is clear and unambiguous material on record to hold that the property stood attached on 6-6-2007, during the pendency of the suit and therefore, any transaction qua sale subsequent thereto, was illegal. Therefore, no inquiry in this context, was needed. The precedent referred to by the learned counsel is distinguishable on facts. In these circumstances, this petition warrants no interference and is consequently, dismissed. M.H. /U-11/L Revision dismissed.