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Jetha Bhima and Co. Vs. Lady Janbai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Appeal No. 11 of 1912
Judge
Reported in(1912)14BOMLR904
AppellantJetha Bhima and Co.
RespondentLady Janbai
DispositionAppeal dismissed
Excerpt:
.....them in 1898. b's debt was paid off and his attachment was raised in 1907. the defendant got the plaintiffs' attachment raised in 1910. the plaintiffs thereupon sued for a declaration that the property which was attached by them was the property of their judgment-debtor and still liable to attachment for their debt. they contended that claims for rateable distribution of assets under section 295 of the civil procedure code of 1882 were claims enforceable under an attachment within the meaning of section 276, that the assignment to j was void against b by virtue of section 276, and that as their claim was enforceable under the attachment of b the assignment to j was void against thorn also : -;(1) that as there were no assets realised by sale or otherwise in execution of a decree which..........in the estate of his father to his mother, the defendant in this suit. in the year 1898 the present plaintiffs brought suit no. 566 against the judgment-debtor mahomed mehdi and obtained a decree on the 16th of september 1898. in 1899 mahomed mehdi took the benefit of the insolvent act but after a time his petition was dismissed. a fresh petition was filed in february 1903 and he was again adjudged insolvent but has not yet obtained his final discharge. in 1904 the present plaintiffs levied an attachment upon the same property as had already been attached, viz., the right, title and interest of mahomed mehdi in the securities held by the receiver in the administration suit relating to his father's estate. on the 15th of october 1907, the judgment-debt owing to balkrishna was.....
Judgment:

Basil Scott, Kt., C.J.

1. The material facts are that Balkrishna, a judgment-creditor of Mahomed Mehdi, attached on the 21st of December 1895 the right, title and interest of the judgment-debtor in certain securities for money held by the receiver in the suit for the administration of the estate of Tharia Topan, the father of the judgment-debtor. On the 6th of January 1896 the judgment-debtor assigned the whole of his right, title and interest in the estate of his father to his mother, the defendant in this suit. In the year 1898 the present plaintiffs brought Suit No. 566 against the judgment-debtor Mahomed Mehdi and obtained a decree on the 16th of September 1898. In 1899 Mahomed Mehdi took the benefit of the Insolvent Act but after a time his petition was dismissed. A fresh petition was filed in February 1903 and he was again adjudged insolvent but has not yet obtained his final discharge. In 1904 the present plaintiffs levied an attachment upon the same property as had already been attached, viz., the right, title and interest of Mahomed Mehdi in the securities held by the receiver in the administration suit relating to his father's estate. On the 15th of October 1907, the judgment-debt owing to Balkrishna was satisfied and his attachment was raised. Subsequently Lady Janbai, the assignee of the judgment-debtor under the assignment of the 6th of January 1896, applied to the Judge in Chambers and got the present plaintiffs' attachment raised and it is in consequence of the order raising that attachment that this suit has been instituted.

2. The plaintiffs pray that it may be declared that the property described in the schedule to the plaint to the extent of the interest of Mahomed Mehdi Tharia Topan at the date of the several attachments is liable to be attached and sold in execution of the plaintiffs' decree.

3. By reason of the law of limitation, the plaintiffs are unable to challenge the assignment in favour of Lady Janbai upon any ground except that it is void under the provisions of Section 276 of the Civil Procedure Code of 1882. For the purpose of this suit, therefore, the assignment must be considered to be a bona, fide assignment of the property of the judgment-debtor to Lady Janbai made in January 1896.

4. Now, in that year the plaintiffs were not attaching creditors, nor had they even filed a suit against Mahomed Mehdi. It is said, however, that the assignment was by virtue of the provisions of Section 276 of the old Code void against the judgment-creditor Balkrishna who had attached on the 21st of December 1895 and that the claim of the Present plaintiffs was a claim enforceable under the attachment of Balkrishna, and, therefore, the assignment in favour of Lady Janbai is void against the present plaintiffs. Balkrishna's attachment has been got rid of under the provisions of Section 275 of the Code, the section immediately preceding Section 276 upon which the plaintiffs based their claim. Section 275 provides that if the amount decreed with costs and all charges and expenses resulting from the attachment of any property be paid into Court, or if sati faction of the decree be otherwise made through the Court, or if the decree is set aside or reversed, an order shall be issued, on the application of any person interested in the property, for the withdrawal of the attachment. In accordance with the provisions of that section, the attachment of Balkrishna was withdrawn on the 1sth of October 1907.

5. The question now is whether, although that attachment is non-existent, the plaintiffs' claim is a claim enforceable under it. The argument, advanced on behalf of the plaintiffs, is that under Section 295 a creditor who has applied to the Court for execution of a decree for money against the same judgment-debtor and has not obtained satisfaction thereof shall be entitled to a rateable distribution with the other judgment-creditors in the same position of all the assets realised by sale or otherwise in execution of the decree ; and it was held by Mr. Justice Telang in Sorabji Edulji Warden v. Govind Ramji ILR (1891) 16 Bom. 91 that claims for rateable distribution of assets under Section 295 are claims enforceable under an attachment within the meaning of Section 276. That decision has received the mark of Legislative approval since the introduction of the Code of 1908, because Section 64, which is to the same effect as Section 276 of the old Code, explains that for the purposes of this section claims enforceable under an attachment include claims for the rateable distribution of assets. Under Section 295 the essential condition of enforcement of claims for rateable distribution was that there should be assets realised by sale or otherwise in execution of a decree. That was a condition which was satisfied in the case of Sorabji Edulji Warden v. Govind Ramji ILR (1891) 16 Bom. 91 but it is not so in the present case. There are, in our opinion, no assets realised by sale or otherwise in execution of a decree which can be divided rateably amongst the creditors who have applied for the execution of their decrees, and, therefore, the plaintiffs are not the possessors of a claim enforceable under Section 295 or as a consequence enforceable under the attachment within the meaning of Section 276. The assignment to Lady Janbai is, therefore, not void as against the plaintiffs.

6. We, therefore, agree with the lower Court in thinking that the plaintiffs' case fails and must be dismissed with costs.

7. We affirm the decree of the lower Court and dismiss the appeal with costs.


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