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Babu Ram Vs. (Firm) Kaloo Mal, Bisheshar Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All1069; 152Ind.Cas.364
AppellantBabu Ram
Respondent(Firm) Kaloo Mal, Bisheshar Prasad and ors.
Cases ReferredChunilal Devi v. Karamchand
Excerpt:
- - 45 but in my opinion unsuccessfully. so i am clearly of opinion that if the case had depended on the claim of the plaintiffs under the explanation to section 64, they would have lost the case. but for different reasons i am of opinion that the appeal in this case must fail. the order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property and against all other transferees from the judgment-debtor from the date on which such order is made......order directing the attachment of the house belonging to the judgment-debtors in execution of the decree of the plaintiffs' firm. three days before the date fixed for sale, the judgment-debtors mortgaged their property in favour of babu ram, defendant-appellant, with the result that the mortgagee had paid oil' the decree money due to the firm, jit mal-kaloo mal, and the amin made a report that the property was not sold because the decree-holder had stated that the amount due had been paid. the property was released. later on, the plaintiffs in execution of their decree against the judgment-debtors put the house to sale, whereupon the defend ant-mortgagee filed objections and asked that this mortgage-deed should be proclaimed at the time of the sale. these objections of the mortgagee.....
Judgment:

Rachhpal Singh, J.

1. This is a second appeal arising out of a suit for a declaration. The judgment-debtors' firm styled Ganpat Ram Mata Saran, were indebted to several persons. One of the decree-holders was a firm styled Jit Mal-Kaloo Mal. They applied for execution of their decree and got one house attached on 6th March 1930. The 26th June 1930, was the date fixed for sale. The plaintiffs (firm Kaloo-Mal-Bisheahar Prasad) had also two decrees against the aforesaid judgment-debtors. They also applied for execution of their decree and also prayed for the attachment of the property and for rateable distribution of the assets after the sale had taken place. The first application was made on 17th April. On 22nd April the Court passed an order directing the attachment of the house belonging to the judgment-debtors in execution of the decree of the plaintiffs' firm. Three days before the date fixed for sale, the judgment-debtors mortgaged their property in favour of Babu Ram, defendant-appellant, with the result that the mortgagee had paid oil' the decree money due to the firm, Jit Mal-Kaloo Mal, and the Amin made a report that the property was not sold because the decree-holder had stated that the amount due had been paid. The property was released. Later on, the plaintiffs in execution of their decree against the judgment-debtors put the house to sale, whereupon the defend ant-mortgagee filed objections and asked that this mortgage-deed should be proclaimed at the time of the sale. These objections of the mortgagee were allowed, with the result that the plaintiffs ware forced to institute the present suit which has given rise to this appeal. The plaintiffs' contention was that the explanation to Section 64, Civil P.C. entitled thorn to enforce their claim in spite of Is he fact that the attachment which had been made at the instance of the other decree holder had been raised. Both the Courts below came to the conclusion that the plaintiffs were entitled to a decree, because their case was covered by Section 64, Civil P.C. The first question for determination in this case is whether the view taken by the Courts below on this point is correct. Section 64 runs 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 moneys contrary to such attachment, shall be void as against all claim enforceable under the attachment.

2. The explanation to this section runs as follows:

For the purpose of this section, claims enforceable under any attachment include claims; for the rateable distribution of assets.

3. The view taken, by the learned District Judge is opposed to that taken by a Bench of this Court in a ruling Bhupal v. Kundan lal 1921 All. 45, where it was held on a construction of the explanation to Section 64, Civil P.C. 1908, that the person claiming rateable distribution of assets cannot get the benefit of it unless he has himself got an attachment on the assets from which he seeks to benefit. The mere fact that he has filed an objection asking to share in the distribution is not sufficient. This view of two learned Judges of this Court was based on a ruling Annamalai Chettiar v. Palamalai Pillai 1918 Mad. 127. That was a Full Bench ruling where the whole question was very exhaustively discussed, and it was held that in order to take advantage of the explanation to Section 64 it is necessary and indispensable that the claim should be one enforceable under an attachment which subsists. If a party, come and says that he is entitled to rate; able distribution under Section 73, Civil P.C., before he can ask the Court to apply the provisions of the explanation to Section 64 to his case, he has to prove that there are assets which have come into the hands of the Court. Where such is not the case the provisions of Section 64 would not apply. It was because of this view that the two learned Judges of this Court held that it is necessary that the decree-holder who seeks to enforce his decree should also get an attachment at his own instance. The learned Munsif tried to distinguish the ruling reported as Bhupal v. Kundan lal 1921 All. 45 but in my opinion unsuccessfully. The learned District Judge did not rely on this ruling but he placed reliance an another ruling of our own Court, Deoraji Koer v. Jadunandan Rai 1931 All 92, to which one of us was a party. I have read that case and I think that it is not applicable to the facts of the case before us. There the assets had come into the hands of the Court and that makes all the difference in the case. Another ruling to which the learned Munsif made reference in his judgment is Chunilal Devi v. Karamchand 1922 Bom. 241. That ruling also can be differentiated, because there too, as the case would show, the assets had already come into the hands of the Court. So I am clearly of opinion that if the case had depended on the claim of the plaintiffs under the explanation to Section 64, they would have lost the case. But for different reasons I am of opinion that the appeal in this case must fail. Section 54. Sub-rule (3), which has been added by this Court, runs as follows:

The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property and against all other transferees from the judgment-debtor from the date on which such order is made.

4. Having regard to this Sub-rule (3) it is clear that the effect of the order passed by the Court on the 22nd April was that it shall be deemed that there had been an attachment of the house in suit from that very date. That being so, the plaintiffs are also entitled to the benefit of Section 64, Civil P.C. As the property had been attached in execution of their decree, they are also entitled to say that the transfer made in favour of the mortgagee was contrary to that attachment.

5. For these reasons I would dismiss the appeal with costs.

Sulaiman, C.J.

6. I agree.


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