Private Alienation of Property After Attachment to be Void
Once property is attached, the judgment-debtor cannot quietly sell it, hand it over, or pay it away to defeat his creditors. Section 64 makes any such private dealing void against the claims enforceable under the attachment — with one narrow escape for an honest, pre-registered buyer.
How to read Section 64
Attachment freezes property for execution. But a freeze is worthless if the debtor can simply transfer the asset behind the court’s back. Section 64 gives the freeze its bite.
After attachment, any private transfer, delivery, or payment of the attached property — made contrary to the attachment — is void as against the claims enforceable under it.
One exception (added 2002): a transfer made under a contract entered into and registered BEFORE the attachment is saved — the honest prior buyer is protected.
The voidness is relative, not absolute — it works only against “claims enforceable under the attachment”, which the Explanation says include rateable-distribution claims (§ 73).
The bare Act
(1)1 Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
(2)2 Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.
A single, un-numbered section voiding private post-attachment transfers — with no exception for a prior registered contract.
The old text was renumbered as sub-section (1) and a new sub-section (2) was inserted, saving a transfer under a contract registered before the attachment.
1. Section 64 renumbered as sub-section (1) by Act 22 of 2002, s. 3 (w.e.f. 1-7-2002).
2. Ins. by s. 3, ibid. (w.e.f. 1-7-2002).
Key terms decoded
A court order freezing property for execution — the debtor’s power to deal with it is suspended; it is said to be in custodia legis (in the custody of the law).
A sale, gift, mortgage or handing-over of the property done privately by the debtor — outside and against the court’s process.
Not just the whole property — even a part-interest (a share, a charge) dealt with privately is caught.
Where the attached asset is money owed to the debtor (a debt, dividend or other monies), paying it to him instead of into court defeats the attachment — equally void.
The forms an attached money-claim can take — a loan owed to the debtor, a company dividend due to him, or any other sum.
In defiance of the freeze — the dealing is struck only where it cuts against what the attachment was meant to secure.
The dealing is not void for all purposes — it is void only against the attaching claims. Between debtor and transferee it may still bind; it simply cannot be set up to defeat the creditors.
The claims the attachment exists to satisfy — the attaching decree-holder’s, and (per the Explanation) others sharing rateably.
The § 73 scheme by which several decree-holders share the realised proceeds in proportion to their decrees — their claims too are protected by § 64.
An agreement to transfer the property — the foundation of the sub-section (2) exception, provided it predates the attachment.
The two cumulative conditions of the 2002 exception: the contract must have been both made and registered earlier in time than the attachment.
The later transfer must actually carry out that pre-existing registered contract — not be a fresh post-attachment deal dressed up as an old one.
The picture — the freeze, the void dealing, and the one escape
The voidness is relative: the dealing fails only against the attaching claims (it may still bind debtor and buyer between themselves). The honest buyer under a pre-attachment registered contract is spared; and the protected claims reach all who share rateably under § 73.
Section 64, part by part
Two sub-sections and an Explanation. Switch tabs to walk through the operative phrases of each.
How the parts work as one body
The principle behind it
From the moment of attachment the asset is held for the court’s process, and the judgment-debtor’s power to deal with it privately is suspended. Section 64 is the statutory teeth of that idea: a dealing that defies the court’s custody cannot be set up against the claims the attachment secures.
Connected provisions
Section 64 protects an attachment’s integrity; it draws on the attachment power (§ 51), the attachable property (§ 60), and the rateable-distribution scheme (§ 73) its Explanation expressly reaches.