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Kunhi Moosa Vs. Akath Makki and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1900)10MLJ98
AppellantKunhi Moosa
RespondentAkath Makki and ors.
Cases ReferredLakshmi v. Kuttunni I.L.
Excerpt:
- .....to which the kanom was granted, ceased on the respondent discharging the judgment-debt due to the attaching creditor to be operative in so far as that creditor was concerned. ramdhan mitter v. kailas nath dutt (1869) 4 b.l.r. ap. jur. 20 and per mitter, j., in anandalal das v. radhamohan shaw (1868) 2 b.l.r. 73. and on principle it follows that with reference to the other judgment-creditors also, who had the attachment resulted in the realization of assets, would have been entitled to a rateable distribution, the attachment became inoperative. if authority were necessary in support of this view reference may be made to the opinion of telang, j. in sorabji eduljee warden v. govind ramji f.n. wadia i.l.r(1891) . b. 91 and the view is in no way inconsistent with the observation of eernan,.....
Judgment:

Subrahmania Aiyar, J.

1. The question in this case is as to the validity of the kanom obtained by the respondent when the land comprised in the instrument of kanom was under attachment in execution of a decree against the party who granted the kanom.

2. Now there is no doubt that the invalidation of a private transfer made pending an attachment of the property transferred only results from a subsisting attachment.

3. In the present case, however, the attachment, subject to which the kanom was granted, ceased on the respondent discharging the judgment-debt due to the attaching creditor to be operative in so far as that creditor was concerned. Ramdhan Mitter v. Kailas Nath Dutt (1869) 4 B.L.R. Ap. Jur. 20 and per Mitter, J., in Anandalal Das v. Radhamohan Shaw (1868) 2 B.L.R. 73. And on principle it follows that with reference to the other judgment-creditors also, who had the attachment resulted in the realization of assets, would have been entitled to a rateable distribution, the attachment became inoperative. If authority were necessary in support of this view reference may be made to the opinion of Telang, J. in Sorabji Eduljee Warden v. Govind Ramji F.N. Wadia I.L.R(1891) . B. 91 and the view is in no way inconsistent with the observation of Eernan, J., in Lakshmi v. Kuttunni I.L.R(1886) . M. 57 to the effect that one attaching creditor could not stay the sale even if he is paid in full after the other decree holder had applied to the Court for execution. That is no doubt true where as was the case in the instance before Kernan, J., the, attachment continues to be in force and effective. For in such circumstances the Court having the control of the proceedings in execution, should doubtless at the instance of a creditor who--though not the attaching creditor--is entitled under Section 295 of the Code of Civil procedure to a rateable distribution and sell the attached property if necessary. But where, as in the present case, the efficacy of the attachment has by a payment out of Court become exhausted, there can be no sale by the Court and no right to apply for such sale.

4. The decision appealed against is right. The second appeal fails and I would dismiss it with costs.

Benson, J.

5. I concur.


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