Private Property Transfer Not Void Under Section 64 CPC If Made Before 'Effective' Execution Of Attachment Warrant: Karnataka High Court

"In terms of Section 64 of the CPC, a private transfer or delivery of property attached, contrary to such attachment, is void as against all claims enforceable under the attachment. It is equally well settled that for the said bar to operate, the attachment must be an effective one." High Court of Karnataka, in a significant ruling dated July 20, 2026, held that a private transfer of property is not void under Section 64 of the Code of Civil Procedure (CPC) if the execution of the attachment warrant was not effective prior to the transfer.

A division bench comprising Chief Justice Vibhu Bakhru and Justice K.S. Hemalekha observed that for the statutory bar on alienating attached property to operate, the attachment process must be completely and effectively executed on the ground.

The appeals arose from execution proceedings where decree holders sought to attach a one-third share of an apartment to recover dues from the Judgment Debtor. The objectors, who are the father and sister of the Judgment Debtor, challenged the attachment under Order XXI Rule 58 of the CPC, arguing the property was solely owned by the father and subsequently gifted to the sister. The Commercial Court had upheld the attachment to the extent of a one-third share, presuming the Judgment Debtor possessed joint ownership based on a familial release deed.

The primary question before the court was whether the Judgment Debtor held any joint, pre-existing share in the subject property that made it liable for attachment. The court was also called upon to determine whether the registered gift of the property by the father to his daughter was void under Section 64 of the CPC due to the pending execution proceedings.

No Presumption Of Joint Ownership

The court thoroughly examined the evidentiary basis upon which the lower Commercial Court presumed the Judgment Debtor possessed a one-third share. It noted that the decree holders produced no concrete evidence of joint purchase, relying solely on a release deed executed by another sibling. Analyzing the sale records, the bench observed that the father had purchased the subject property out of his own funds generated from the sale of his previously self-acquired property.

Release Deed Acknowledged Absolute Title

Delving into the contents of the release deed, the court found it explicitly affirmed the father's absolute ownership over the apartment. The bench highlighted that the deed contained no assertion that the sibling had acquired any right, title, or interest in the schedule property. Rather, the document expressly recorded that the father had purchased the apartment under an absolute sale deed and the releasing sibling was merely abandoning prospective claims.

"Insofar as the subject property is concerned, there is an unequivocal assertion in the release deed that appellant No.1 is the absolute owner."

Attachment Must Be Effectively Executed

Addressing the validity of the property transfer, the court noted that the father executed a registered gift deed in favor of his daughter on June 26, 2023. The bench pointed out that while an order for an attachment warrant was initially issued by the executing court, the bailiff returned it unexecuted due to insufficient charges being paid by the decree holder. The court emphasized that the mere issuance of a warrant does not trigger the statutory protections against property alienation.

Section 64 CPC Requires Actual Attachment

The court elucidated the legal threshold required to invoke Section 64 of the CPC, which renders private transfers of attached property void against enforceable claims. The bench stressed that this statutory prohibition strictly requires an active, completed attachment process to be on record. Since the formal attachment of the property was not effectuated before the gift deed was registered, the transfer remained entirely valid, and the property passed absolutely to the daughter.

Finding that the Judgment Debtor had no interest in the subject property and the transfer to the daughter was legally sound, the High Court set aside the impugned orders of the Commercial Court. Consequently, the division bench allowed the appeals and directed that the attachment of the subject property be lifted entirely in both execution cases.

Date of Decision: 20 July 2026