Skip to content


Khushalchand Premraj Marwadi Vs. Nandram Sahebram Marwadi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 501 of 1910
Judge
Reported in(1911)13BOMLR977; 12Ind.Cas.572
AppellantKhushalchand Premraj Marwadi
RespondentNandram Sahebram Marwadi
Excerpt:
.....code (act xiv of 1882), sections 276, 295, 320, 325a--decree--execution--attachment--order for sale--execution proceedings transferred, to collector--disposal of darkhast by mamlatdar--mamlatdar, agent of collector--certifying adjustment of a decree--another decree--attachment under the second decree--execution of second decree transferred to collector --claim of decree-holder under the first decree satisfied--collector ashed to dispose of the darkhast--private alienation by the judgment-debtor--validity of--claims enforceable under the attachment---claim for rateable distribution of other decrees--the english bills of sale act of 1878, section 8.;the plaintiff having obtained a money decree against one b, got certain property belonging to b attached in execution of the decree. the..........and void under section 276 of the code of 1882, because the property was on the date of the sale under attachment in the plaintiff's darkhast ultimately disposed of by the collector on the strength of the plaintiff's application that it should be returned to the court as 'disposed of' in consequence of the satisfaction of the decree. but though the attachment had existed then, and does not appear to have ever been formally raised, the darkhast claim having been satisfied was no longer enforceable under it.consequently the sale to the defendant remained unaffected, so far as it concerned that darkhast claim.11. the question, then, is whether a separate darkhast (no. 2439 of 1902), presented on the 13th of december 1902 by the . plaintiff for the execution of another money decree.....
Judgment:

N.G. Chandavarkar, Kt., J.

1. The question of law arising on this second appeal depends on a few facts, which are not in dispute and may be shortly stated, so far as material.

2. The plaintiff, who is respondent, having, in darkhast No. 1280 of 1900 in suit No. 614 of 1900, attached the property in dispute in execution of his money decree against his judgment-debtor, Bapu Sakharam, the Court ordered the property to be sold, and under Section 320 of the Code of Civil Procedure (Act XIV of 1882), then in force, transferred the execution to the Collector.

3. While the Collector was in management accordingly, the plaintiff, on the 21st of May 1904, informed the Mamlatdar, who was carrying on the execution work on behalf of the Collector, that, as his judgment-debtor had satisfied the decree, the necessity for sale had disappeared, and that the darkhast 'should be disposed of.'the Mamlatdar submitted the record and proceedings of the darkhast to the Collector on the same day with the following endorsement: 'As the darkhast has been disposed of, the papers are sent that they may go to the Court.' On the 8th of June, the Collector forwarded the papers accordingly to the Court, and the latter received them on the 16th of June.

4. In the meantime, that is, on the 31st of May 1904, the plaintiffs judgment-debtor, Bapu Sakharam, executed a deep of sale of the property to the defendant, in consideration of the moneys which the defendant had advanced for the satisfaction of the plaintiff's decree in the darkhast above mentioned, and also for payment of other debts of the said judgment-debtor.

5. The question is, whether this deed is valid, having regard to the provisions of Section 325A of the Code of Civil Procedure (Act XIV of 1882).

6. The first limb of the first paragraph of that section provided as follows :--'So long as the Collector can exercise or perform in respect of the judgment-debtor's immoveable property, or any part thereof, any of the powers or duties conferred or imposed on him by Sections 322 to 325 (both inclusive), the judgment-debtor or his representative in interest shall be incompetent to mortgage, charge, lease, or alienate such property or part, except with the written permission of the Collector.'

7. It is contended for the plaintiff (respondent) that, as the Collector was in management of the property in dispute on the date of the sale to the defendant, and could then have exercised the powers under Sections 322 to 325, the plaintiff's judgment-debtor was incompetent to sell and that the sale to the defendant is in consequence illegal and void. The answer to that is that Sections 322 to 325 presuppose a decree which has to be satisfied and which is, therefore, capable of execution. That cannot be said of a decree, which its holder by his declaration to the Collector acknowledges to have been satisfied. The acknowledgment here was made no doubt to the Mamlatdar; but he was the Collector's agent, and notice to him was notice to the Collector. As a matter of fact, the Mamlatdar accepted the admission and acted upon it by disposing of the darkhast in the manner requested by the plaintiff, and the Collector upheld the Mamlatdar's action. True, it was upheld by the Collector after the date of the sale to the defendant, but in law that action of the Collector related back to the date on which the Mamlatdar, as the Collector's agent, had passed his order disposing of the darkhast.

8. When a decree-holder intimates to the Collector that his decree has been satisfied, and that the necessity for its execution by the Collector has ceased to exist, the Collector's powers under Sections 322 to 325 also cease; because the very foundation of them, consisting in the fact of a decree which is alive and capable of execution, has disappeared.

9. But it was said that the Collector was not warranted in acting upon the plaintiff's admission that the decree had been satisfied, because the satisfaction was one made out of Court and, not having been certified to the Court, it could not be recognized as a payment of the decree under Section 258 of the Code. But the intimation to the Collector, who was in charge of the execution, amounted to a due certifying, which satisfied the conditions of Section 258: Muhammad Said Khan v. Payag Sahu ILR (1894) All. 228. Our conclusions are confirmed by reference to Rule 15 of the rules under Section 320 of the Code printed at page 52 of the High Court Civil Circulars, which provides that when execution has been as far as possible completed, the Collector shall re-transmit the papers together with the execution proceedings to the Court.

10. Then it was urged against the sale by the judgment-debtor, Bapu Sakharam, to the defendant, that it was illegal and void under Section 276 of the Code of 1882, because the property was on the date of the sale under attachment in the plaintiff's darkhast ultimately disposed of by the Collector on the strength of the plaintiff's application that it should be returned to the Court as 'disposed of' in consequence of the satisfaction of the decree. But though the attachment had existed then, and does not appear to have ever been formally raised, the darkhast claim having been satisfied was no longer enforceable under it.

Consequently the sale to the defendant remained unaffected, so far as it concerned that darkhast claim.

11. The question, then, is whether a separate darkhast (No. 2439 of 1902), presented on the 13th of December 1902 by the . plaintiff for the execution of another money decree against the same judgment-debtor obtained in Suit No. 634 of 1901, rendered the sale illegal and void under Section 325A. This separate darkhast was also transferred by the Court to the Collector for execution, after an order for attachment of the property because the latter had already been seized of the property under Section 320. The attachment in execution of this decree, existing in fact on the date of the private sale to the defendant by the judgment-debtor, is relied upon by the learned pleader for the plaintiff (respondent before us) as rendering the sale in question illegal and void. The learned District Judge has taken the same view, and in support of it he refers to the 2nd paragraph of Section 325 A. But he has overlooked the 2nd limb of the first paragraph of the section, which provides : 'Nor shall any Civil Court issue any process against such property or part in execution of a decree [for money.' This second attachment was on that account illegal and could not affect the private sale to the defendant by the plaintiff's judgment-debtor. Further, the Collector does not appear to have taken any action under Section 323 and, therefore, the case is untouched by the 2nd paragraph of Section 325 A. This separate darkhast in fact never was and never could have been referred to the Collector under Section 320 by reason of the existing reference of the previous darkhast and hence was wholly unaffected by the provisions of Section 325 A of the Code.

12. The question remains, whether the sale by the judgment-debtor, Bapu Sakharam, to the defendant, was illegal and void under Section 276 of the Code (Act XIV of 1882) by reason of this separate darkhast. It might be argued that it was, because) though the claim under this separate darkhast could not legally be enforced by transfer to the Collector, it was still a claim enforceable under Section 276 read with Section 295 of the Code, as held in the case of Sorabji v. Govind ILR (1891) 16 Bom. 91 and confirmed by the explanation added to Section 64 of the new Code (Act V of 1908).

13. But this argument is not supported by the language of Section 276 and the authorities with reference to its proper construction and effect. The provisions of that section make the private alienation void, not absolutely, but only 'as against all claims enforceable under the attachment' referred to in it. Where the execution proceedings, in the course and for the purpose of which the attachment was made, have come to an end on account of satisfaction of the decree by the judgment-debtor, and in consequence the decree is no longer alive, the attachment also ceases, and there is no longer any claim 'enforceable' under the attachment to make the private alienation effected by the judgment-debtor during the attachment void. The person for whose protection Section 276 was primarily intended has had his claim in that event satisfied otherwise than by the attachment. As to any claim under another decree, cognizable under Section 295, that had been dependent on the continuance of the said attachment. When that attachment was swept; away, all other claims cognizable under it ceased to be operative for the purposes of Sections 276 and 295. The moment the decree sent to the Collector was satisfied, everything dependent on it (in virtue of Sections 322 to 325 A) ceased to have legal effect and there was no claim left which was enforceable under the attachment. All obstruction to the legal validity of the private alienation made during the continuance of the attachment having been removed, the alienation revived and became legal, because the question then came to be one entirely between the alien or and the alienee. See Umesh Chunder Roy v. Raj Bullubh Sen ILR (1832) Cal. 279; Gobind Singh v. Zalim Singh ILR (1883) All. 33 and Kunhi Moossa v. Makki ILR(1899) Mad. 478. The principle of law applicable here is the same that was applied by the Court of Chancery in England in construing Section 8 of the Bills of Sale Act of 1878 in Ex parte Blaiberg: Inre Toomer (1883) 23 Ch. D. 254. Section 8 of that Act provided that a bill of sale of the kind specified there 'shall be deemed fraudulent and void' as against an execution creditor under certain specified circumstances. It was held by the Court that it was void, not to all intents and purposes, but merely to the extent of satisfying the claims of the persons indicated in the section; that the section was intended only for the benefit of the execution creditor, so that if the execution was swept away, as if it had never existed, the bill-of-sale-holder became entitled to the goods. So here, the moment the attachment of the plaintiff came to an end by reason of the satisfaction of his first decree sent to the Collector for execution, all claims enforceable under the attachment ceased to be enforceable under it. The only bar in the way of the private alienation was removed as if it never existed in law; and the question as to the private alienation made by the judgment-debtor to the defendant during the attachment became reduced to one between that judgment-debtor and his alienee. It was never competent for the former to contend that his sale was ever void as against him.

14. For these reasons the decree appealed from must be reversed and that of the Subordinate Judge restored with the costs in this Court and in the lower Court of appeal on the respondent (plaintiff).


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //