IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4647 OF 2008 BETWEEN Thota Jaya Prakash. …PETITIONER AND G. Guna Sundarama and two others. …RESPONDENTS Counsel for the petitioner: MR. T. JANARDHAN RAO Counsel for the Respondent No.1: MR. T. LAKSHMINARAYANA The Court made the following: - ORDER: The claim petitioner in E.A.No.157 of 2004 in E.P.No.460 of 2002 in O.S.No.102 of 1999 on the file of the Junior Civil Judge, Srikalahasthi, is aggrieved by the order in E.A.No.157 of 2004 dated 20.08.2008 whereunder he was required to pay the stamp duty and penalty on the agreement of sale dated 06.01.1999, which he intended to mark during his evidence. 2. Learned counsel for the petitioner states that though possession was not delivered under the said agreement of sale, the Court below has erroneously disallowed marking of the said document even for collateral purpose viz. to show the date of agreement. The petitioner intends to establish in the said claim petition that he had purchased the property in question under the aforesaid agreement dated 06.01.1999 and later under a registered sale deed dated 06.09.1999. The attachment obtained by the decree holder in the suit O.S.No.102 of 1999, out of which the execution petition arises, was actually effected on 08.02.1999 as attachment before judgment and it became absolute on the suit being decreed on 15.12.1999. In the execution petition the decree holder sought to proceed against the said attached property whereupon the present claim petition came to be filed by the petitioner herein. 3. Irrespective of the controversy with regard to stamp duty and penalty on the said agreement, from the admitted dates and events it is evident that the sale deed in favour of the petitioner dated 06.09.1999 is subsequent to the attachment dated 08.02.1999. Prima facie, therefore, under Section 64 of the Code of Civil Procedure, any alienation subsequent to the attachment is void. In that view of the matter, therefore, prima facie, the petitioner cannot claim as a third party claimant but the application has to be treated as one under Section 47 CPC, as he is claiming only under the judgment debtor. The evidence of the petitioner, which is produced in the additional papers filed by the learned counsel for the respondent, itself shows that the petitioner herein was examined as D.W.2 in the suit itself. In the said evidence, he stated that the agreement of sale was executed in his favour in 1996 and possession was also delivered in 1996. Though the year of the agreement and possession is stated to be 1996, the agreement itself shows that it is dated 06.01.1999. Further, as D.W.2, he had deposed that attachment of the property was on 23.01.1999 whereas his sale deed – Ex.C1 was dated 06.09.1999. 4. In either view, therefore, I am of the view that the said agreement of sale as well as the sale deed is, prima facie, affected by Section 64 CPC, as the attachment, in any case, whether it is on 08.02.1999 or 23.01.1999 is anterior to the same. The contention of the learned counsel for the petitioner regarding plea of possession coupled with agreement is also doubtful inasmuch as though the agreement does not say so, the evidence of the petitioner mentioned above proceeds to say that possession was delivered under the agreement. Assuming and going by the recital in the agreement of sale, even if it is held that the sale agreement is not coupled with possession, the advalerum stamp duty and penalty as directed by the Court below as a pre-condition for marking of the said document does not warrant any interference. The civil revision petition is devoid of merits and it is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 15, 2010 DSK