John Beaumont, Kt., C.J.
1. This is a second appeal from a decision of the Assistant judge of Dharwar. The facts giving rise to the suit are these. On May 27, 1921, defendants Nos. 1 to 3 agreed to sell five survey numbers to the plaintiff. That sale was carried out by a conveyance on September 26, 1922, but in the meantime, namely on September 6, 1922, one Sitaram commenced a suit against the defendants for a sum of money and obtained an order for attachment before judgment of the property, or part of the property, included in the plaintiff's sale. On November 8, 1922, when the provisional order for attachment, which Sitaram had obtained, came up to be made absolute, the Court refused to make the rule absolute and cancelled the attachment. Sitaram appealed against that order, and on March 1, 1923, an order was made by the then District Judge of Dharwar, the effect of which is said to be to restore the attachment. The true construction of that order is one of the questions with which I have to deal. On April 4, 1923, the property was attached, and subsequently Sitaram got a decree against the defendants, and under that decree the attached property was sold by the Court in execution, and Sitaram purchased with the leave of the Court for Rs. 1,581. That sum was applied in discharge of Sitaram's debt, and the balance of Rs. 331 was paid to the plaintiff, and on October 18, 1930, an order was made in execution giving possession to Sitaram and ousting the plaintiff from possession. The plaintiff's case in this suit, therefore, is that he got no title to the property, which was subsequently sold to Sitaram, and claims damages against the vendors for breach of their covenants of title implied under Section 55(1)(a) and (2) of the Transfer of Property Act.
2. Two points are taken on this appeal. The first is that the order of March 1, 1923, did not have the effect of restoring Sitaram's attachment but created a new attachment, which was after the date of the sale to the plaintiff. The order is not very happily worded. It states that the appellant's pleader is content if the respondent gives security for Rs, 4,000, and the learned Judge says : ' This seems reasonable. I order the respondent to give security within fifteen days, failing which the property will be attached.' It is obvious that that order is not correctly expressed. The learned Judge had no power to order the respondents to give security. What he was really doing was providing that the attachment should continue unless the respondents gave security. He was giving them an option, and I think when he directs them to give security and says ' failing which the property will be attached,' all that he means is that the attachment on the property will be continued, that is to say, the rule will be made absolute unless within fifteen days the security is furnished, in which case the attachment will be discontinued. That seems to me to be the effect of the order, and that is the view which is taken in both the lower Courts.
3. The second point taken has undoubtedly more substance in it. It is argued that, in point of fact, the plaintiff got a perfectly good title from the vendors, and, therefore, they are not liable for breach of their covenants for title, and reliance is placed on Order XXXVIII, Rule 10, Civil Procedure Code, which says that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit. Now, the plaintiff was not a party to Sitaram's suit, and, undoubtedly, before Sitaram obtained attachment before judgment, the plaintiff had acquired a right under the contract of sale. It is true that a contract for sale in India does not, as in England, confer any equitable estate on the purchaser, but undoubtedly the purchaser has a right to have the contract carried out, and that right is not merely, as Mr. Murdeshwar argued, a right to sue for specific performance. It is not necessary to sue for specific performance, if the vendor is willing to carry out his obligation, and I think undoubtedly the plaintiff had a right require the vendors to carry out their contract, and as it has been proved-that the paintiff had no notice of the attachment, he would be entitled to pay his purchase money to the vendors. Mr. Murdeshwar argues that is inconsistent with Section 64 of the Code of Civil Procedure, which provides that where attachment has been made, any private transfer or delivery of the property attached or of any interest therein shall be void. But one must read Section 64 and Order XXXVIII, Rule 10, together. Section 64 applies, I think, to an effective attachment, and under Order XXXVIII, Rule 10, attachment before judgment is not effective as against rights subsisting at the date of the attachment. Therefore, I think, there is a good deal of force in the contention of the present appellant that the plaintiff did get a good title Mr. Murdeshwar relies on Taraknath Mukherji v. Sanatkumar Mukherji I.L.R. (1929) Cal. 274 but that case is opposed to an earlier decision of the Calcutta High Court in Madan v. Rebati (1915) 23 C.L.J. 115 in which the Court held that a conveyance of a property, executed after its attachment before judgment by a creditor, in pursuance of a contract dated before the attachment, should prevail over the attachment. I think that decision is right, and I prefer it to the later decision of the 'Calcutta High Court, which, I must confess, I have some difficulty in understanding.
4. The question then arises whether the appellant is entitled to take this point now. It was not apparently taken in either of the lower Courts, but, apart from that, the point ought to have been taken at the time when the plaintiff was dispossessed. The plaintiff was dispossessed in execution proceedings at the instance of Sitaram, and the present appellant as judgment-debtor was a party to those proceedings, though he did not put in an appearance. In those proceedings, to which the appellant was a party, the Judge held, rightly or wrongly, that the plaintiff was not entitled to retain the property as against Sitaram, and it seems to me that the appellant is not entitled to dispute that finding. It is res judicata, the principle of which, it is well settled, applies in execution proceedings. If the appellant is not entitled to affirm that the plaintiff got a good title against Sitaram, then I think he has no answer to the plaintiff's claim for damages for breach of the covenants for title.
5. The appeal, therefore, fails and must be dismissed with costs.