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Radha Ballabha Vs. Bohra Makhan Lal - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All641
AppellantRadha Ballabha
RespondentBohra Makhan Lal
Excerpt:
- - in that sale deed there was a provision that the vendee should pay off the decree of bam chandra, and the vendee made payment, and on 19th april 1933 bam chandra applied to the court under order 21, rule 2 stating that his decree was satisfied and the attachment on his decree was accordingly struck off. on the other hand the argument is that section 64 will only apply to make a transfer void if the attachment has not been withdrawn as it was withdrawn in the present case, and further although the explanation of section 64 does give a certain right to a person who has made an application for rateable distribution, that right will not cover a case like the present where the attachment has come to an end....... but that was a case where there had been an auction sale of the property in question and the decree-holder was a purchaser at the auction sale, and he filed the usual certificate of satisfaction in court. ah that was held was that the filing of such a certificate should be taken as similar to the coming of assets into the hands of the court under section 73 and that in those circumstances a person who had already applied for rateable distribution had a right to rateable distribution from the proceeds of the auction sale. learned counsel for the appellant also referred to dal chand v. mul chand : air1934all896 . that however was a different ease because in that case the property was also sold by the sale officer, and the assets therefore came into the hands of the court. on p. 1254.....
Judgment:

1. This is a second appeal by the plaintiff against a decree of the lower appellate Court. The plaintiff brought a suit for a declaration that property attached in execution of the plaintiff's decree against defendant 2 was saleable in execution thereof. The facts are as follows : The plaintiff had a simple money decree against defendant 2 and Bam Chandra also had a simple money decree against defendant 2. Bam Chandra attached the property of defendant 2. In January 1933 the plaintiff made an application for rateable distribution to the Court which had passed both these decrees, the application being made under Section 73, Civil P.C. On 11th April 1933 the judgment-debtor, defendant 2, executed a sale deed of the property in question - house property - in favour of defendant 1, a stranger, Bohra Makhan Lal. In that sale deed there was a provision that the vendee should pay off the decree of Bam Chandra, and the vendee made payment, and on 19th April 1933 Bam Chandra applied to the Court under Order 21, Rule 2 stating that his decree was satisfied and the attachment on his decree was accordingly struck off. Prior to this application of the 19tb April the plaintiff had made an application on 13th April 1933 for attachment of the property in question. But this application for attachment was subsequent to the sale deed of the 11th April and therefore does not affect the matter. The argument which has been addressed to us is that under the provisions of Section 64, Civil P.C., the alienation by defendant 2 to defendant 1 should be considered void. Section 64, provides as follows:

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.

Explanation. - For the purposes of this section claims enforceable under any attachment include claims for the rateable distribution of assets.

2. The argument is that because the Explanation states that claims for rateable distribution are considered as claims enforceable under an attachment, therefore the claim of the plaintiff for rateable distribution had the effect of an attachment, and as the transfer was made after the application for rateable distribution, there-fore the attachment was void. On the other hand the argument is that Section 64 will only apply to make a transfer void if the attachment has not been withdrawn as it was withdrawn in the present case, and further although the Explanation of Section 64 does give a certain right to a person who has made an application for rateable distribution, that right will not cover a case like the present where the attachment has come to an end. Learned Counsel for the appellant was unable to show any ruling which would cover the facts of the present case. He referred to Ram Chand v. Sher Singh : AIR1933All666 . But that was a case where there had been an auction sale of the property in question and the decree-holder was a purchaser at the auction sale, and he filed the usual certificate of satisfaction in Court. AH that was held was that the filing of such a certificate should be taken as similar to the coming of assets into the hands of the Court under Section 73 and that in those circumstances a person who had already applied for rateable distribution had a right to rateable distribution from the proceeds of the auction sale. Learned Counsel for the appellant also referred to Dal Chand v. Mul Chand : AIR1934All896 . That however was a different ease because in that case the property was also sold by the sale officer, and the assets therefore came into the hands of the Court. On p. 1254 of that ruling there occurs the following passage in regard to Section 64, Civil P.C.:

Now under Section 64, Civil P.C., a person who applies for rateable distribution is placed or the same footing so far as the attachment goes as the attaching decree-holder. If however the attachment were to cease, the position of the person who had applied merely for rateable distribution might become precarious and he might not be able to proceed further to realise the amount.

3. This passage shows that the Court considered that where an attachment ceases, the ruling would no longer apply. The same point has been considered in a ruling of a Bench of this Court reported in Mehar Chand v. Joti Prasad : AIR1934All1057 . In that ruling it was laid down that where a decree-holder attached property in execution of his decree and another decree-holder applied for rateable distribution without attaching the property in execution of his decree and subsequently the judgment-debtor alienated the property and paid off the attaching decree-holder, the alienation to satisfy the decree under which the attachment was made is not 'contrary to such attachment' within the meaning of Section 64, Civil P.C., and the other decree-holder was not entitled to question the alienation under Section 64, Civil P.C. The present case is similar and we follow the ruling which we have quoted and accordingly we dismiss this second appeal with costs.


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