1. The question involved in this second appeal is as to the validity of the sale-deed in favour of the plaintiffs, Exhibit 39, dated June 8, 1920, for Rs. 8,000. The property originally belonged to one Bhabhutsing. On April 8, 1920, one Bhila, brother of the defendant, brought suit No. 261 of 1920 and attached before judgment the property in suit on April 23, 1920, On April 19, 1920, the plaintiffs brought a suit, No. 287 of 1920, and attached the property before judgment on May 28, 1920. On April 22, 1920, the defendant brought suit No. 294. of 1920, and got the property attached before judgment on June 19, 1920.
2. The sale.deed in favolir of the plaintiffs for Rs. 8,000 was passed for satisfaction of the claim in their own suit and the claim of the defendant's brother in suit No. 261 of 1920. Those claims were satisfied, and suit No. 287 of 1920 brought by the present plaintiff's was dismissed for want of prosecution on June 15, 1920, and the suit of the defendant's brother was similarly dismissed on June 22, 1920. The defendant, however, obtained a decree, and in execution of his decree he purchased the property on July 1, 1922. The contest is, therefore, between the defendant as an auction purchaser in execution of his own decree and the plaintiffs as purchasers under the private sale from the original owner on June 8, 1920. Both the Courts decided in favour of the plaintiffs.
3. It is urged in this second appeal that the sale-deed in favour of the plaintiffs was void under Section 64 of the Civil Procedure Code as it was effected on June 8, 1920, at a time when there were two attachments before judgment in suit No. 261 of 1920 of the defendant's brother and suit No. 287 of 1920 of the plaintiffs, and that the defendant himself attached the property on June 19 1920. The first question, therefore, arising in this case is whether the private transfer in favour of the plaintiffs was contrary to the attachment within the meaning of Section 64 of the Civil Procedure Code. So far as the attachment of the defendant is conerned, it was made on June 19, 1920. It is clear, therefore that the property transferred on June 8, eleven days before the actual attachment before judgment in the defendant's suit, would not, in any way, be affected by the subsequent attachment. According to Order XXXVIII, Rule 10, of the Civil Procedure Code attachment before judgment shall not affect the rights, existing prior to the attachment, of persona not parties to the suit. The plaintiffs were not parties to the suit in which the defendant levied the attachment on June 19, 1920. The private sale, therefore, on June 8, 1920, in favour of the plaintiffs cannot be said to be contrary to the attachment before judgment in the defendant's suit on June 19, 1920.
4. It is urged, however, on behalf of the appellant that though the private transfer in favour of the plaintiffs was prior to his attachment on June 19, he can take advantage of the existing attachments before judgment in the defendant's brother's suit and in the plaintiffs' suit which were subsisting at the date of the sale in favour of the plaintiffs. It is clear that the sale was effected for the purpose of satisfying the claim of the defendant's brother and the claim of the plaintiffs in their suit, and as a matter of fact both the claims were satisfied from the consideration for the sale-deed in favour of the plaintiffs, and the plaintiffs suit was dismissed on June 15, and the defendant's brother's suit was dismissed on June 22. It cannot, therefore, be said that the plaintiffs' sale-deed was contrary to the two attachments which may be said to be technically subsisting on the date of the sale-deed. Under order XXXVIII, Rule 9, the attachment before judgment must bs considered to have been withdrawn when the suits were dismissed.
5. It is further urged that the sale-deed in favour of the plaintiffs is void against all claims enforceable under an attachment, and that the claim in the defendant's suit was a claim enforceable under the attachments before judgments in the two suits which were subsisting at the date of the sale. In the present case, the defendant had not then obtained a decree in the suit which ha had brought, nor was there any sale in execution of the two previous attachments in the suits of the defendant's brother and the plaintiffs. On the other hand, the claims in the two suits were satisfied on or before Juno 22, 1920, Under the explanation to Section 64, claims enforceable under an attachment include claims for the rateable distribution of assets. A person, who has merely obtained an attachment before judgment, cannot put up a claim for rateable distribution unless he has obtained a decree and made an application for execution. In Arwnachellam Chettiar v. Haji Sheeh Meera Bowthar I.L.R (1910) Mad. 25, it was held that only a decree-holder who has applied for execution can claim a right to rateable distribution, that such a right is not conferred upon a plaintiff who has merely obtained an attachment before judgment and has not applied for execution under Section 230, Civil Procedure Code, and that an attachment before judgment is in no sense an application for execution. The same view is accepted in Pallonji Shapurji Mistry v. Edward Vaughan Jordan I.L.R (1888) Bom. 400. and Sewdut Roy v. Sree Canto Maity. I.L.R (1906) Cal. 639. Order XXXVIII, Rule 11, corresponding to Section 490 of the old Code, only obviates the necessity for a re-attachment of the property in execution and does not confer any right to preferential treatment over other creditiors. Several cases have been cited bsfore us which relate to applications for rateable distribution after decrees had been obtained and the property was attached in execution. To those cases the explanation to Section 64 might apply. In the present case, at the date of the sale in favour of the plaintiffs on June 8, 1920, there was no decree and no sale in execution of a decree. The attachment referred to in Section 64 is the attachment under which the execution sale is held and not an attachment of a creditor who is paid off. See the decision in Annamalai Ghettiar v. Palamalai Pillai I.L.R (1917) Mad. 265, f.b. following Mina Kumari Bibi v. Bijoy Singh Dudhuria . In the present case, there was no decree or sale in execution in respect of the attachments before judgment in the Suit of the plaintiffs and that of the defendant's brother as their claims were satisfied by the alienation in favour of the plaintiffs. The attachment before judgment in the defendant's suit in execution of which the sale was held was subsequent to the alienation of the plaintiff. There were not, therefore, any claims enforceable under the previous attachments under Section 64 of the Civil Procedure Code. It is also clear that the dlaim of the present defendant does not fall under the explanation to Section 64, for there were no assets held by the Court in order go entitle him to the benefit of Section 78 of the Civil Procedure Code. It follows, therefore, that the claim of the present defendant was not a claim falling under Section 73 of the Civil Procedure Code, and, therefore, not a claim enforceable under the attachment within she meaning of Section 64 of the Civil Procedure Code. We think, therefore, that the contention of the appellant that the sale-deed is void under Section 64 is not sustainable.
6. It is urged on behalf of the appellant that though his case might not fall strictly within Section 64, the principle of Section 64 might be applied in considering his claim under the attachment of June 19, 1920. The argument cannot be accepted, According to the decisions in Jetha Bhima & Co. v. Lady Janbai I.L.R (1912) Bom. 138: 14 L.R. 511, and Mina Kumari Bibi v. Bijoy Singh Dudhuria (1919) L.R. 44 IndAp 72: 19 Bom. L.R. 424. the sale-deed in favour of the present plaintiffs cannot be affected by the attachment of the defendant which was levied eleven days after the sale-deed. The previous attachments must be considered to have been withdrawn on account of satisfaction of the claims in respect of which the attachments were effected. The moment the attachment comes to an end by reason of satisfaction of the decree, all claims under the attachment cease to be enforceable. See Khuahalchand v. Nandram Sahebram I.L.R (1911) Bom. 516 : 13 Bom. L.R. 977. I think, therefore, that the view taken by the lower Court is correct and that the sale-deed in favour of the plaintiffs is not void under Section 64 of the Civil Procedure Code.
7. On the merits, it appears clear that the defendant-appellant had a claim of about Rs. 1,000, and purchased the property for Rs, 800, whereas the present plaintiffs on June '8, 1920, paid Rs. 8,000 for satisfaction of two decretal claims and the balance was paid to the original owner. I agree, therefore, with the view of the lower Court that even on the merits the appellant has not any serious grievance,
8. On these grounds, I would dismiss the appeal with costs.
9. I agree. I have only a few words to say. Admittedly, the defendant-appellant cannot take advantage of the attachment in his own suit which was not in existence at the date of the sale to the plaintiffs, and he cannot take advantage of the attachments in the other two suits, for, under Section 64 it cannot be considered that the transfer to the plaintiffs and the consequent payment to the judgment-debtor were contrary to such attachments as the proceeds were devoted to pay off the amounts for which the suits in question were brought. Further, the section says that any alienation referred to in it shall be void as against all claims enforceable under the attachment. The claim of the defendant was not enforceable under the attachments already referred to, and consequently, does not fall within the section. On general principles also, the appellant has not been able to produce any authority in support of his case, I, therefore, agree that the appeal should be dismissed with costs.