P L D 1962 Supreme Court 119 (PLP)

B. Z. KAIKAUS, J.

This is a certified appeal from the judgment of the High Court of East Pakistan holding, in a contest between a purchaser at a Court sale and a private transferee from a judgment-debtor on the basis of an agreement for sale antecedent to attachment by Court, that title to the property vested not In the auction-purchaser but in the private transferee. The brief facts are that one Birendra Mohan Ghose was granted by the Government a lease of the properties described In Schedule A to the plaint in this suit for a period of 20 years with effect from the 15th of April 1934, along with a right of renewal, on the expiry of the lease, on assessment of fresh rent. On the 1st November 1935, Birendra Mohan Ghose transferred all his rights in the land to Srimati Surabala Ghose. The Govern ment accepted Surabala Ghose as its tenant. Srimati Surabala Ghose in her turn transferred a part of the properties to S. C. Phatak on the 31st of March 1947, and the Government recognised S. C. Phatak as its tenant. The part of the properties transferred to S. C. Phatak is entered in Schedule B to the plaint and it is this property which is the subject-matter of the present suit. That part of the property which still remained with Srimati Surabala Ghose she transferred to Abdus Sobhan, defendant No. 3, on the 18th January 1952. Before the transfer in favour of Abdus Sobhan, that is, on the 10th of July 1951, Mohiuddin Molla, the appellant before us, filed a suit against S. C. Phatak for money and obtained a compromise decree for a sum of Rs. 800 on the 21st December 1951. According to the compromise the decretal amount was to be paid in three instal ments payable in June 1952, January 1953 and June 1953 and the decree-holder was entitled to take out execution only if the judgment-debtor failed to pay two instalments. On the 20th of May 1952, that is, even before any instalment fell due S. C. phatak entered into an agreement to sell the property 1n Schedule B to Abdus Sobban, defendant No.

3. On the 14th of June 1952, although the decree had not as yet become executable the decree-holder, that is, the appellant, applied to the Court which had passed the decree to attach the property mentioned in Schedule B, alleging that the judgment-debtor was taking steps to sell his property. The Court issued notice to the judgment-debtor and after hearing his objections came to the conclusion that the execution application could not be proceeded with, but that the Court could protect the decree-holder by attaching the property in dispute so that the judgment-debtor may be prevented from disposing of it. 'The Court struck off the execution case but directed that the property was to remain attached. On the 10th of September 1952, S. C. Phatak sold the property mentioned in schedule B to Abdus Sobhan, defendant No. 3, In pursuance of the agreement for sale entered into on the 20th of May 19"

2. In 1954 the appellant applied for execution of his decree by sale of the property mentioned in Schedule B. The sale was held on the 12th of May 1954. The appellant himself purchased the property and the sale was made absolute on the 14th of June 1954. In the meantime Abdus Sobban, defendant No. 3, had secured a fresh settlement from the Government of the land in dispute on the 1st of April 1 54, for a period of 230 years. The appellant after purchase of the property in dispute at the Court sale applied to the executing Court for delivery of possession and actually got possession on the 3rd of October 1954. Abdus sobhan, defendant No. 3, having been dispossessed by the appellant gave notice under section 108 of the Transfer of Property Act to the Provincial Government on the 27th of June 1955. At this the Provincial Government filed an applica tion under rule 100 of Order XXI of the Civil Procedure Code before the executing Court for delivery of possession on the ground that the tenant of the Provincial Government had been dispossessed. This application was found by the Court to be time-barred and was dismissed as such. The Provincial Government then filed the suit out of which the present appeal arises against the appellant, making Abdus Sobhan a pro forma party, for a declaration that the entire proceedings of the money execution case were illegal, void and without jurisdiction, and the plaintiff was entitled to the possession of the property and for restoration of possession by evicting the appellant. The attachment was attacked inter alia on the ground that the Court had no jurisdiction to entertain the application for execution because according to the compromise execution was not possible until there was default in the payment of two instalments, and as the application for execution did not lie the Court had no power to order attachment. The attachment was also attacked on the ground that the execution case had been struck cuff. The appellant resisted the suit maintaining that the Court has jurisdiction to order attachment although the decree was not as yet executable. He contended further that the private sale in favour of Abdus Sobhan respondent was ineffective as it was made during the pendency of the attachment. The trial Court found the attachment to be valid but held that the sale in favour of Abdus Sobhan being in pursuance of an agreement of sale which was antecedent to the attachment was valid and at the time of the Court sale the judgment-debtor had no saleable interest in the property. On these findings he decreed the suit. On appeal the Subordinate Judge found the attachment to be void, but he was of the opinion that the suit was not maintainable under Order XXI, rule

103. He accepted the appeal and dismissed the suit. In second appeal a learned Single Judge of the East Pakistan High Court agreed with the Subordinate Fudge as to the attachment being without jurisdiction, but differed from him as to the maintainability of the suit and allowing the appeal he decreed the suit. In a Letters Patent Appeal filed by the present appellant the findings of the learned Single Judge were armed. Mr. M. K. Roy who appears for the appellants argues:- (1) that the attachment was valid ; (2) that the private sale to Abdus Sobhan was ineffective as against the purchaser at a Court sale ; and (3) that the suit was not maintainable under Order XXI, rule

100. On the first of these points we accept the contention of learned counsel for the appellant. The Court has inherent juris diction to preserve the property of the judgment-debtor in order that it may be available for realization of the decretal amount. This principle has been recognised to Order XXXVIII, rule 5 of the Civil Procedure Code which empowers the Court to attach the property of the defendant in order that any decree that is passed in the suit may be satisfied by sale of the attached property. If the Court has power to attach the property of the defendant at a time when there is only a possibility of a decree in favour of the plaintiff, it will be anomalous to hold that after he has actually secured a decree the Court cannot act to protect his interests just because the execution of the decree has been postponed. The ,jurisdiction of the Court to attach the property of the defendant truly arises from the fact that the Court has power to grant relief. A power to grant relief necessarily implies power to take all such steps as may be needed to ensure the grant of relief to the plaintiff. Full q relief is not granted to a plaintiff by a paper decree. It is only when the decree is satisfied that he gets full relief and the Court has power to pass all such orders as may be required for the satisfaction of the decree unless any such order be expressly or by necessary implication prohibited. Order XXXVIII, rule 5, should be regarded as a provision which recognizes a power rather than a provision which confers a power. The Civil Procedure Code, generally speaking, does not create new powers but regulates the exercise of power already possessed by the Court. Even before the Civil Procedure Code was enacted the Civil Court possessed powers of the in mentioned in the Civil Procedure Code. It possessed these powers because the Civil Court has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such powers is essential. The present case was quite a strong one for the issuing of an order of attachment. A decree had been passed. The allegations before the Court which passed the decree were that the judgment-debtor was taking steps to dispose of the whole of his property and was leaving for India and if the property was not attached there may be nothing left for the decree-holder. If these facts were correct the proper course was to attach the property and protect the decree-holder. The decree-holder had not given time to the judgment-debtor in order that he may dispose of his property. On behalf of the respondents it was urged that the execution case had been "struck off" and therefore in accordance with Order XXI, rule 57 the attachment could not remain in force. There is an amendment of rule 57 by the Calcutta High Court by which the Court is granted power to direct that attachment may continue although the execution application no longer remains pending and this amendment is applicable to the East Pakistan High Court. Learned counsel for the respondents contended that rule 57 applies to attachment in execution, and not to the present attachment. That is true but if rule 57 does not apply there was no bar to the Court ordering that attach ment will continue though execution is "struck off". In fact, the application for execution did not lie at all and the applica tion should have been only for attachment. The application for execution was a superfluity which may be overlooked. The B Court passed the proper order striking off the execution and maintaining the attachment. There is no force at all in the objection of the respondents. The next question is as to the effect of the agreement for sale in favour of Abdus Sobhan being antecedent to the attachment. Learned counsel for the appellant contends that according to section 8 of the Transfer of Property Act the whole interest of the transferor passes to the transferee and as an agreement for sale creates, in accordance with section 54 of the Transfer of Property Act, no interest in immovable property the result should be that C the purchaser at a Court sale will get the property free of any such agreement. Learned counsel assumes that if the interest is full there are no further obligations which bind the property and the transferee of the property. This position he himself gives up when he accepts that there can be covenants which run with the land and the purchaser will be bound by such covenants. The answer to the question as to whether the agreement for sale would bind the transferee from the vendor would appear to depend on whether such agreement is a covenant running with the land, but it will really not be necessary to decide the question in this form for there are statutory provisions which provide that the transferee from the vendor would be bound by such agree ments as if he has notice of the agreement for sale and we find, for reasons to be presently recorded, that he had such notice in the present case. It may be observed here however that in the ultimate analysis there is no general principle on which the question as to whether a covenant runs with the land may be decided and the matter has to be determined according to the law of a particular country. If the law says a covenant shall run with the land it will so run. That is the only criterion. The statutory provisions which are applicable to a situation like the present are:- Section 40 of the Transfer of Property Act, 1882:"Where, for the more beneficial enjoyment of his own immovable pro perty, a third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands. Section 27 of the Specific Relief Act, 1877:"Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) either party thereto ; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of `the original contract ; (c) any person claiming under a title which, though prior to tile contract and known to the plaintiff, might have been dis placed by the defendant ; (d) when a public company has entered into a contract and subsequently becomes amalgamated with another public company, the new company which arises out of the amalga mation ; (e) when the promoters of a public company have, before its incorporation, entered into a contract, the company ; provided that the company has ratified and adopted the contract and the contract is warranted by the terms of the incorporation." Section 91 of the Trusts Act, 1882:

"Where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which, specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract." According to section 40 of the Transfer of Property Act, 1882, an obligation annexed to the ownership of property binds the transferee with notice. That an agreement for sale is an obligation annexed to the ownership of property is apparent and is in any case clear from the first illustration to section

40. In respect to section 40 the contention of learned counsel for the appellant Is that it applies only to private transfer and not to a Court sale This is correct and it is only if we hold that the section embodies a principle that it would apply to Court sales too. However it is not necessary to decide the applicability of this principle to a Court sale for the simple reason that the other two provisions, that is, section 27 of the Specific Relief Act it and section 91 of the Trusts Act are clearly applicable. Section 91 of the Trusts Act uses very wide language. It comes into operation whenever a person "acquires" property. To the applicability of this section in fact learned counsel for the appellant had no answer and all that he could urge was that the appellant had no notice. Section 27 of the Specific Relief Act makes the contract enforceable against a person claiming under the party to the agreement. A purchaser at a Court sale, though he may not be a representative of the judgment-debtor for all purposes does claim his title under the judgment-debtor. Before concluding this part of the discussion we would observe that there was no attack in this suit on the sale in favour of Abdus Sobhan as being a transfer the object of which was to delay and defeat the creditors; and we say nothing as to what the effect of the proof of such a contention may have been on the decision of this suit. We now come to the question whether the appellant had notice of the agreement to sell. In the application which was filed for attachment of the property in dispute he had stated that the judgment-debtor was "making arrangements to sell" the property in dispute, and "application bad been made for clearance certificate to the Income-tax Department". There is not much difference between an "arrangement to sell" and an agreement to sell but this Is not all. The appellant being aware of the application for a clearance certificate could easily find out further details of this arrangement. In the application for clearance certificate the name of the intending purchaser has to be stated. The application which had been filed by S. C. Phatak is on record and in it the name of Abdus Sobhan is entered as the intending purchaser. When in the witness box the appellant had been questioned as to whether he knew of the agreement in favour of Abdus Sobhan, he at first accepted that he knew though he retracted that statement immediately. That the appellant had notice of an agreement for sale in favour of some person cannot be denied, for In the application for clearance certificate this has to be alleged. It would be quite sufficient for binding the appellant that he knew of an agreement of sale relating to the property in dispute in favour of some person; As to who was the would-be purchaser was not material for him. But it can even be held that the appellant had constructive notice of an agreement of sale in favour of Abdus Sobhan because the circumstances were such that he could easily find out the name of the intending purchaser. There remains the objection of the appellant that the suit did not fall under Order XXI, rule 103 of the Civil Procedure Code, an objection which it has been difficult for us to appreciate. It will be convenient to reproduce here the relevant provisions of the Civil Procedure Code :- Order XXI, rule 100.-(l) "Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same." Order XXI, rule 101."Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property." Order XXI, rule 103.--"Any party not being a judgment debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property ; but, subject to the result of such suit (if any), the order shall be conclusive." Learned counsel for the appellant contends that the application being time-barred it cannot be said that any order was passed against the Provincial Government under rule 101 and therefore rule 103 will nit be applicable. We are quite prepared to accepts that the dismissal of a time-barred application should not help regarded as an order under rule 101, but this does not in any way advance the case of the appellant. Learned counsel for that appellant appears to assume that unless rule 103 was applicable the present suit would not lie, an assumption for which there is no basis at all. When a person is dispossessed in execution of a decree to which he is not a party his remedy is not confined to an application tinder rule 100 of Order XXI. He need not approach the executing Court at all. He can file a simple suit for possession on the basis of his right in the property. The Provincial Government bad, before it filed the application under rule 100, the right to file a suit for declaration and possession and that right surely was not lost by the filing of a belated application under rule

100. The dismissal of the application left the parties in the position in which they were before it was filed. Rule 10:1 does not create a new right of suit. All that it provides is that the party against whom an order is made may sue to establish the right which he has in the property. We have held that the agreement for sale would bind the purchaser at the Court sale if be had notice of the agreement. Strictly speaking, this situation will arise in a case where there is only an agreement to sell which is sought to be enforced against a purchaser at Court sale. Here the sale in favour of Abdus Sobban had already taken place before the property was put to sale by the Court. As an agreement for sale binds the purchaser at a Court sale, a sale that has already taken place would bind him, that is, section 64 which invalidates a transfer of property which is subject to attachment, will not affect a transfer which is in pursuance of an agreement that is binding on the purchaser and such transfer will be valid. Abdus Sobhan therefore is a valid transferee of the right of S. C. Phatak in the property in dispute. This appeal is dismissed, but the parties are left to bear their own costs throughout. A.H. Appeal dismissed.