John Wallis, C.J.
1. This appeal from a decree for redemption raises questions of some importance as to the duration and effect of an attachment of immoevable property in execution of a money decree in O.S. No. 341 of 1994 in the Palghat District Munsifs Court against the present 7th defendant and the other members of his family. The decree 'was transferred for execution to the Palghat Sub-ordinate Court which attached the immoveable properties of the family including the properties now in suit on 9th September, 1895. The attachment was struck off for want of process on the 4th November following, and the decree went back to the Munsifs Court, where the decree-holders recovered certain sums by way of rateable distribution in 1996 and 1897, and thereafter kept the decree alive by applications to that court for execution against the person until the 5th of March, 1907, the day before the decree would have become barred. when the transferee of the decree made a fresh application to the Subordinate Court in E.P. No. 31 of 1907 for attachment and sale of the properties. There was no fresh attachment, but sale was ordered after overruling the objections raised by the counter-petitioner, the present 7th defendant, and the attached properties were sold at court auction on 9th November, 1908 to a purchaser through whom the plaintiff claims.
2. To understand his case it is necessary to see what had happened to the attached properties between September 1895, the date of the attachment, and November 1908, the date of his purchase. It is sufficient to say that they had been sold free of incumbrances on 7th February, 1906 at a court auction to one Raman Kutti in execution of a decree in O.S. No. 299 of 1903 on one of several mortgages subsisting at the date of the attachment; and on 5th July, 1907 Raman Kutti sold the suit properties which were some of the properties so acquired by him to the present 7th defendant, one of the judgment-debtors. On the 24th July 1907 the 7th defendant agreed to sell the property to the present 1st defendant who instituted a suit for specific performance of the agreement in October 1907, obtained a decree in January 1908, and a Court conveyance on 2nd February 1909. In July 1907 when the 7th defendant agreed to sell he had no notice of E.P. No. 31 of 1907, as notice to him was not ordered until the 19th August 1907.
3. The contest is, therefore, between the plaintiff claiming through the auction purchaser in execution of the money decree of 1895, and the 1st defendant, a transferee from the 7th defendant who after the sale of his equity of redemption in the suit properties under the mortgage decree in O.S. No. 299 of 1903, bought them back from the auction purchaser and contracted to sell them to the 1st defendant before he had any notice of the application which had then been filed for the execution of the old money decree of 1895. It will be most convenient to deal with the grounds on which Mr. Ananthakrishna Aiyar for the respondents endeavoured to support the decree for redemption passed by the lower court. He contended that the effect of the attachment of September 1895 was to prevent the 7th defendant from alienating the attached properties to the 1st defendant and to render the alienation void. Even if this were not so, he contended in the alternative, that, as the attaching decree-holders in O.S. No. 341 of 1894 were not made parties to the mortgage suit, their statutory right under Section 91(f) of the Transfer of Property Act to redeem the mortgaged properties was not affected, and passed to the auction purchasers in that suit through whom the plaintiff claims. He further contended that by reason of the proceedings in E.P. No. 31 of 1907 the defendants' claim was barred by res-judicata and the doctrine of lis pendens.
4. Mr. T.R. Ramachandra Ayyar who appeared for the appellants denied that the attachment of 1895 had any of the effects contended for. In the first place he argued that it was no longer subsisting in July 1907 when the 7th defendant agreed to sell to the 1st defendant, as it must be deemed to have been abandoned, having been struck off because the decree-holders failed to proceed with it and nothing having been done on it for nearly twelve years. Even if this were not so, the sale in execution of a decree obtained on a mortgage created prior to the attachment put an end to the attachment, and it was no longer subsisting when the present 7th defendant bought back the suit properties from the auction purchaser under the mortgage decree and did not therefore disable him from making an alienation in favour of the 1st defendant. As regards the alleged right of redemption by virtue of the attachment, he denied that the attaching decree-holders in O.S. No. 394 of 1894 were necessary parties to the mortgage suit for sale assuming the attachment to have been subsisting when it was filed, or that the attaching creditors retained any right of redemption after the sale of the properties in execution of the mortgage decree which put an end to the attachment and all rights arising under it.
5. Further the attaching decree-holder's right of redemption under Section 91, Transfer of Property Act did not pass to the auction purchaser under the decree. Again the plaintiff was not entitled to a decree for redemption without setting aside the court sale under the mortgage decree which he did not seek to do. The plaintiff was not entitled to rely on res-judicata or lis pendens, but the defendants were.
6. As regards the first point there is in my opinion much to be said for the view that the facts of the case raise a presumption that the attachment was abandoned, as held by the Privy Council in Puddomonee Dossee v. Roy Muthooranath Chowdhry (1873) 6 B L.R. 411. where the facts do not appear to me to have been any stronger. It was an attachment by a court to which the decree had been transferred for execution. It was struck off by that court a few days after it was ordered, and the decree was then sent back to the court which passed it. It was then kept alive for the statutory period and nothing further was done in the Subordinate Court for nearly twelve years, and then on the last available day, an application was made to the Subordinate Court for a fresh attachment and sale. It is however unnecessary to base my decision on this ground as I think the appellants are entitled to succeed on other grounds.
7. The next question is, whether the attachment of 1895 and the attaching decree-holder's right of redemption under it subsisted after the sale in February 1906 of the attached property free of incumbrances under the mortgage decree in O.S. No. 299 of 1903. This question must be considered with special reference to the position of an attaching creditor in India where execution against immoveable property is by attachment and court sale instead of by elegit and fieri facias. An attachment is an order prohibiting and restraining the defendant from transferring or charging the attached property by sale, gift or otherwise, and all persons from so receiving it, (App. E, Form 24); and Section 64 of the Code of Civil Procedure provides that any private transfer or delivery of the property attached shall be void against all claims enforceable under the attachment. As has been often held, its effect is to prevent alienation and not to confer title by way of charge or otherwise on the attaching decree-holder. Further it is only aimed at private alienations. Conformably with these principles it has been held that, where the same property has been attached in execution of two money decrees and brought to sale under the later attachment, the sale is unaffected by the existence of the prior attachment in the other suit Kashl Nath Roy Chowdhry v. Subbaman Shaha I.L.R.(1895) Cal. 517. In that event, as the learned judges observed, the prior attachment fell to the ground. Similarly an attachment must equally fall to the ground as soon as the attaching creditor has brought the judgment-debtor's interest to sale in execution of his decree and that interest has passed to the auction purchaser free of attachment.
8. I think the view that a court sale of attached property altogether releases it from attachment is the right view and that full effect must be given to it. Attachments preventing private alienation by the judgment-debtor are granted solely for the purpose of protecting the attaching creditor's right to bring to sale in execution the right, title and interest in the attached property of the judgment debtor, and there is no reason for holding that they continue to affect the attached property in any way when the interest of the judgment-debtor is no longer realisable in execution of the attaching creditor's decree because it has passed by a court sale to an auction purchaser who with his assigns takes it free from the attachment and with unrestricted rights of alienation.
9. The judgment-debtor's interest having gone the attachment goes with it. If as in the present case, he re-acquires the attached property from the auction purchaser or his assignees, he acquires a fresh interest which may be made the subject of a fresh attachment, but is not in my opinion affected by the earlier attachment. It would give rise to great hardship and seriously affect court sales if we were to hold that persons claiming through an auction purchaser at a court sale were liable to be deprived of the property for which they had paid because one of the intermediate transferees from the auction purchaser had been a defendant in a suit, in which the properties had been attached before the court sale.
10. Coming now to the attaching creditor's alleged right to redeem any mortgage there may be on the attached property, it follows that this right must also come to an end together with the attachment itself on the sale to the auction purchaser in execution of the decree. Thereafter the attaching creditor has no concern with the property, while on the other hand the auction purchaser has acquired any equity of redemption or right to redeem the mortgaged property that the judgment debtor may have had in the property, and there is no necessity or justification for holding that the attaching creditor's right to redeem is transferred to him by the court sale. The right to redeem conferred on an attaching creditor by Section 91 of the Transfer of Property Act is not, it seems clear, based on any charge on the attached property for the amount of his debt putting him in the position of a subsequent mortgagee, as it is now perfectly well settled that in India he acquires no such charge by the attachment. He is merely allowed while the attachment is in force to exercise any right of redemption the judgment-debtor may be entitled to for the purpose of bringing the judgment-debtor's interest to sale in execution of his decree more advantageously than if it were sold subject to the mortgage. His position is quite different from that of a judgment-creditor in England whose right to redeem land is based on the fad, that the sheriff's return ' vests the legal estate in the creditor ' Per Mellish, L.J. in Hatton v. Haywood (1874) 9 Ch. 229 .
11. Applying these conclusions to the present case, I hold that the attaching creditor's attachment and with it his right of redemption came to an end on the 7th February, 1906 when the suit properties were sold in execution of a decree for sale against the judgment-debtors on a prior mortgage, although the attaching creditor was not a party to the mortgage suit; and that, even if there had been no such decree, the attachment and the attaching decree-holder's right of redemption would have come to an end on 9th November, 1908, when he brought the judgment-debtor's interest to sale and it was acquired by the auction purchaser through whom the plaintiff claims.
12. A different view has no doubt been taken on the first question in a reported case, Venkata Seetha Ramayya v. Venkataramayya I.L.R(1912) . Mad. 418. but that decision has been dissented from by Seshagiri Aiyar, J. in Veyindramuthu Pillai v. Maya Nadan : (1920)39MLJ456 . and I am unable with great respect, to accept the reasoning on which it is based.
13. The learned Judges observed that Section 91 of the Transfer of Property Act recognises an attaching creditor as one who by virtue of his interest in the property is entitled to redeem, and consequently held him to be a necessary party to the mortgage suit under Section 85 of the Transfer of Property Act, and that his rights were not affected by a decree-made in his absence. With great, respect this appears to me to be just what Section 91 does not do because it does not deal with an attaching creditor as ' a person having any interest in or charge upon the right to redeem the property ' within the meaning of Section 91(b) which, as I. have pointed out would be the position of a judgment-creditor in England after the Sheriff's return, but puts him in a category by himself in Sub-section (f) as having no such interest. The natural inference appears to be that the legislature did not regard him as entitled to redeem by virtue of an interest in the property, which he docs not possess, but on other grounds such as have been suggested above. Coming now to Section 85 of the Transfer of Property Act, nowOrder XXX IV, Rule 1,there is I think no sufficient reason for giving a wider construction to the words 'interest in the property comprised in the mortgage ' in Section 85 or to the words ' having an interest either in the mortgaged security or the right of redemption' in Order XXXIV, Rule 1. They are in pari materia with Section 91, and the word 'interest' should bear the same construction in both. An attaching creditor it seems to me is sufficiently protected by being allowed to come in and redeem before the court sale puts an end to his attachment and to his character of attaching creditor, and he should not be allowed merely on the ground that he was not made a party to the mortgage suit to disturb the title of the auction purchasers and their assignees who, speaking generally, do not know, and have no means of knowing, whether the mortgaged property was under attachment in execution of money decrees at the date of the mortgage suit. No registers of attachments are kept and in the present case it took several months in 1907 to satisfy the Subordinate Court that it had ever ordered the attachment in question. Different considerations would arise if an attaching creditor acquired a charge of his own on the attached property by virtue of his attachment but it is clear that he does not.
14. Mr. T.R. Ramachandara Aiyar, also, argued that the plaintiff could not in any view be allowed to redeem without setting aside the court sale in the mortgage decree and cited the recent decision of the Privy Council in Ganpat Lal v. BindbaSini Prasad Narayan Singh . In that case property, which was the subject of a mortgage created by a father for an antecedent debt, had been brought to sale in a mortgage suit to which the son was not a party; and the son afterwards filed a suit for redemption in which he did not question the validity of the mortgage or the decree for sale in the mortgage suit but claimed to redeem after the property had been brought to sale. In these circumstances it was held that he could not be allowed to redeem without setting aside the sale because, so long as the sale stood, the right to redeem was extinguished. I can find no sufficient reason for refusing to apply that decision to the present case, in which also the plaintiff is not in a position to question either the mortgage or the decree for sale; but, as I have already said, I think the plaintiff's case fails on the broader grounds already mentioned. I do not consider it necessary to discuss the effect of the recent decision except in so far as it affects the present case.
15. The remaining points may be briefly dealt with. It was argued by Mr. Anantakrishna Aiyar for the respondent that the filing of Execution Petition No. 31 of 1907 created a Us or contest between the attaching creditor and the judgment debtor 7th defendant and that consequently the 1st defendant to whom the 7th defendant agreed to sell the attached properties after the filing of the petition but before notice had been directed to the 7th defendant was bound by the order for sale which was eventually made. Now at the date of the filing of the execution petition the properties, as already held were no longer under attachment, and the execution petition asked for a fresh attachment and sale. It has never, so far as I know, been held that a mere application for execution by attachment and sale of the judgment-debtor's interest in the property specified in the petition is the commencement of the active prosecution of a contentious proceeding in which a right to immoveable property is directly and specifically in question, so as to make any alienation by the judgment debtor voidable under Section 52 of the Transfer of Property Act.
16. If Mr. Anantakrishna Aiyar's contentions were well-founded an attachment would be unnecessary, as the mere tiling of the Execution petition would be sufficient to prevent alienation. It appears to be a sufficient answer to say that the attaching decree-holder's right to bring to sale any interest which the judgment-debtor might have in the attached property was res-judicata by virtue of the decree and that the mere filing of a petition for the execution of the decree did not give rise to any fresh contentious proceeding of the kind contemplated in Section 52. There is, if possible, even less foundation for the contention that the defendants are barred by res-judicata. When the 7th defendant the judgment-debtor agreed to sell to the 1st defendant the property was not under attachment, and the 1st defendant acquired by virtue of the contract a right which was enforceable against the 7th defendant and all claiming through him, including the auction purchaser of the 7th defendant's interest in execution of the money decree against him. In these circumstances, the 1st defendant cannot be held to have been represented by the 7th defendant in the execution proceedings which in no way affected his right to have the property conveyed to him.
17. This judgment disposes of the plaintiff's claim with the exception of a one fourth share in items 1 and 2 which the plaintiff acquired by an independent title, as alleged by him in paragraph 9 of the plaint. We think he should be granted in the present suit a partition of this14th interest as against the defendants in whom the remaining three fourths are vested. It is alleged for the defendants that, since their purchase, they have redeemed certain mortgages on the items, and this fact, if established, will have to be considered in working out the partition. Except as regards items 1 and 2 the suit will be dismissed. As regards items 1 and 2 there will be a preliminary decree for partition of the respective shares of the plaintiffs and defendants. The plaintiff must pay the 1st defendant's costs throughout. The Memorandum of objections is dismissed.
Seshagiri Aiyar, J.
18. I agree. This appeal, arises out of a suit for redemption. The facts are somewhat complicated. The property in suit belonged to the seventh defendant in this case and his brothers who were known as Tharagans. There were five mortgages on it. The first, second, third and the fifth, were in favour of one Subramaniam Chetti. The fourth was to one Narayana Aiyar on the 1st February, 1894. We are only concerned with this mortgage.
19. O.S. No. 349 of 1894 was instituted by one Ramakrishna Pattar against the Tharagans for money in the District Munsif's Court. A decree was obtained on it and the equity of redemption in the suit property was attached in 1895 in the Sub-Court. The application was struck off for default in November 1895. The records were then sent back-whether it was at. the request of the decree-holder or by the Court suo motu does not appear, to the Munsif's Court. In that Court, proceedings were taken for rateable distribution and by April 1897 a sum of Rs. 215 and odd was realised. Subsequent applications were made in that Court, one in 1897, another in 1900 and so on, in order to keep the decree alive; the last application was on the 5th March, 1907 in the Sub-Court and it expressly prays for an attachment, proclamation and sale of the property. This application was returned for amendment on a number of occasions. It was ultimately presented in a form which the court considered proper on the 19th August, 1907. Notice was then ordered to the judgment-debtors. The 7th defendant filed various objections, one of them being that on the date of the application for attachment, the property was not his. The objections were overruled and. the property was sold on the 30th June, 1908. The present plaintiff claims under the court sale.
20. I shall now deal with the proceedings connected with the 4th mortgage. A suit was instituted on it in 1903. To this suit, the attaching creditor in the money decree was not a party. The usual mortgage decree was passed and the property was sold in October 1905. One Ramakutti Nair became the purchaser. Two of the items were sold by him privately to Subramaniam Chetty. The 7th defendant in the present suit and one of the judgment-debtors purchased the other items. After the application for attachment and sale of the property in March 1907 he entered into an agreement with the 1st defendant to sell it to him. This was on the 25th July, 1907. On this agreement a suit v/as instituted on the 23rd October, 1907, and the Court conveyed the property to the 1st defendant on the 2nd February, 1909.
21. The Subordinate Judge on the first occasion held that the plaintiff was entitled to sue for redemption. An appeal was taken to this Court, and this Court reversed the decision and remitted the case back to the Subordinate Judge for trial on the merits. He had now given a decree for redemption. The first defendant has preferred this appeal.
22. Mr. T.R. Ramachandra Aiyar for the appellant has put forward the following contentions :-(1) that the sale to Raman Kutti in the mortgage suit put an end to the attachment in the money suit and that consequently the plaintiff acquired no title to the property; (2) that as the fourth mortgage was merged in the decree the plaintiff is not entitled to sue for redemption without setting aside the decree and the court sale following it; (3) that the attaching creditor is not a necessary party to a mortgage suit and has no right to question the proceedings connected with it; (4) that plaintiff by his inaction for a period of at least nine years has abandoned the first attachment, that when the mortgage suit was instituted he had no claim to be made a party and that therefore the sale in the mortgage suit conferred a valid title and (5) that even if the attaching creditor had a right to reopen the sale the auction purchaser under the money decree was not entitled to stand in his shoes.
23. I shall refer to the contentions of Mr. Ananthakrishna Aiyar who appeared for the respondents as he contended that it would be unnecessary to consider the points raised by the appellant if his contentions were upheld. The learned vakil asked us to hold that as the 7th defendant was a party to the proceeding's which resulted in the court-sale under the money decree, he and the first defendant who claimed title under him were bound either by the principle of res-judicata or by the doctrine of Us pendens and it was not open to the first defendant to question plaintiff's right to redeem.
24. I am unable to accept this view. As regards, res-judicata, on the facts I have mentioned, it is clear that the 7th defendant did not represent the first defendant in the execution proceeding's. Before notice went to him he had agreed to sell the property to the first defendant. It was held in Savithri Ammal v. Ramasami (1998) 8.M.L.J.266. Madan v. Rebati (1915) 23 C.L.J. 115 and Venkata Reddy v. Yellappa Chetty (1916) 5 L.W. 234 that a person in whose favour an agreement to sell was executed acquired such a right as would enable him to compel the purchaser with notice of the agreement to take the property subject to his right. This principle receives support from the provisions of the Specific Relief Act Section 27 and from Section 91 of the Trusts Act. Although Section 54 of the Transfer of Property Act in terms enacts that anagreement to sell does not convey any interest in the property, it seems well established that the person in whose favour such an agreement is executed has at least the right to compel persons purchasing the property with notice of it to take it subject to the possibility of his right being perfected by a regular conveyance. When notice went to the 7th defendant he was contesting the suit of the 1st defendant although he finally consented to a decree. In these circumstances the 7th defendant did not represent the 1st defendant. The observations of the Judicial Committee in Mina Kumari Bibi v. Bijoy Singh Dudhuria I.L.R(1918) . Cal. 662 . supports this view.
25. On his pendens, the broad question is whether on the presentation of an application for the sale of immoveable property there arises a contentious proceeding in which any right to immoveable property is directly and specifically raised so as to attract the provisions of Section 52 of the Transfer of Property Act. I am not able to take this view. No doubt, where after notice, objections are raised on the ground that the property does not belong to the judgment debtor, the proceeding may be said to relate to a right in immoveable property directly and specifically. Till then, the application does not in any way affect that right. 1 hold that there is no force in the contention that the purchase by the 1st defendant was affected by the doctrine of his pendens.
26. Now I shall deal with the contentions of the learned Vakil for the appellant. On the question whether the attaching decree-holder must be taken to have abandoned the attachment, I am of opinion that the contention is not well founded. Up to 1897, the decree-holder certainly prosecuted his claim. He realised moneys in the District Munsif's Court. In the subsequent applications-there were at least three-he always referred to the fact that there was a first application for attachment. In the last of the applications in 1907, he distinctly stated that the property was attached in 1895. It is true that the application of 1895 was struck off, but as was pointed out by Ayling and Hannay, JJ. in Peetiyakkal Vatakke Pureyil Mullahi v. Marakkarakath Ahammad (1914) M.W.N. 796 . the practice in this presidency has been to regard the order ' striking off' as one made for statistical purposes; such orders do not ordinarily put an end to the attachment. My experience both at the bar and on the bench, is that these orders are never seriously considered as having the effect of dismissing an application properly made. Further, as was held in Mohamdsha Khan Shaib v. Srinivasulu (1902) 18 M.L.J. 22 , the mere fact that there is a new prayer for attachment is not a ground for holding that the applicant intended to give up his rights under the original attachment. When one remembers that these applications are drafted by vakil's clerks who have no idea of the principles governing execution, courts should not attach too much importance to statements like the one contained in the present application. It will not be irrelevant in this connection to remark that it is a pity that such applications are inaccurately worded. It is largely due to the fact that under the rules made by the various High Courts the fee payable to a practitioner on an execution application is very inadequate. Judges spend more labour and time in disposing of these applications than in disposing of appeals and second appeals. If the remuneration were more attractive, it is very likely that practitioners would bestow more time and care in their preparation and thereby save the time of the court. This is only by the way. I have made these remarks with a view to dissuading courts from attaching undue importance to statements like the one we are dealing with. 'It was contended by Mr. Ramachandra Aiyar that this case is governed by the principle enunciated by the Judicial committee in Puddomonee Dossee v. Roy MuthooranathChowdhry (1873) 12 B . L. 411 . The facts are materially different. There the application was struck off after a long lapse of time during which the applicant took no steps to enforce any of his remedies; and the fact that a new application was put in which there was a prayer for attachment was considered as strengthening the inference that the petitioner intended to give up the original application. Here there was active prosecution and constant renewal of the application. I hold that there has been no abandonment.
27. One other contention of Mr. Ramachandra Aiyar with which I am unable to agree was that without setting aside a court sale a suit for redemption is not maintainable. This contention was based largely upon the observations contained in Ganpat Lal v. Bindbasini Prasad Narayan Singh (1920) 47 I. A. 91.. In that case, a decree was passed against a father on a mortgage. Subsequently the sons sued to redeem the property on the ground that they were not properly represented in the suit and that their rights of redemption were not affected. Lord Moulton in delivering the judgment of the Judicial Committee points out that a prayer for setting aside the sale was deliberately abandoned, that it was conceded in the courts below that the debt for which the mortgage was executed was binding on the son and that the decree obtained on the mort-gage could not be impeached on any of the grounds open to a Hindu son. On these facts and admissions the judicial committee held that without setting aside the sale the plaintiffs were not entitled to redeem the property. The ratiodecided of the decision I take to be this. That as the father represented the sons and was competent in that capacity not only to part with his interest, but also with the interests of his sons, unless the sons could bring their claims within the principles recognised by Hindu Law as enabling them to impeach such a transaction, they should not be allowed to redeem the property. I do not regard the decision as holding that in all cases where a mortgage is merged in a decree and sale follows on it, unless the sale is set aside, there can be no suit for redemption. This would cut at the very root of Section 85 of the Transfer of Property Act and Order 1, Rule 34 of the present Code of Civil Procedure. Mr. Ramachandra Iyer did not hesitate to contend that even in the case of puisne encumbrancers, if they are not made parties to the suit, they cannot seek to redeem the property without seeking to set aside the sale. This view is opposed to the decision of the Judicial Committee in Matru Mal v. Durga Kumvar (1919) 47 I.A. 71. In that case, a puisne encumbrancer brought a suit on the ground that he was not a party to the suit by the previous encumbrancer, and a decree in his favour was given. The learned vakil for the appellant tried to explain away the decision by saying that the point whether a suit for setting aside the sale should have been brought was not considered by the Judicial Committee. I do not think that this explanation is satisfactory. In UmesChander Sircar v. Zahur Fatima I.L.R.(1890) Cal, 164 it was recognised by the Judicial Committee that without setting aside a sale a suit for redemption can be maintained. In the teeth of the language of Section 85 of the Transfer of Property Act and of O. I, Rule 34, I find it impossible to hold that were a person has an interest in the property and is not made a party to the suit on the mortgage, he is not entitled to ask for redemption without setting aside the sale. The decision of the Judicial Committee in Ganpat Lal v. Bindbasini Prasad Narayan Singh (1920) 47 I.A. 91 must be restricted to the class of cases where the law presumes a valid representation by the father of the interest of his son. This would be clear from a reference to Sheo Shankar Ram v. Jaddo Kunwar I.LR(1914) All. 383 .
28. Mr. Ramachandra Aiyar further contended that a judicial sale puts an end to the attachment. There is the authority of the Calcutta High Court in Kashi Nath Roy Chowdhry v. Subbanand Shaha I.L.R. (1885) Cal. 317 in favour of this contention. The language of Section 64,Code of Civil Procedure is also in his favour. That section provides that where there is an attachment, a private purchaser of the property takes it subject to the result flowing from the attachment. Section 52 of the Transfer of Property Act by its last clause preserves the rights of a purchaser under the orders of the court. The property being the subject of litigation in court the law is jealous against a private alienation of that property. That is the reason for the rule contained in Section 64 of the Code of Civil Procedure and that is the reason why under Section 52 of the Transfer of Property Act orders of the court directing the sale are left unaffected. I am therefore inclined to agree with the view taken in 12 Calcutta on this question.
29. The next contention of the learned vakil was that an attaching creditor is not a necessary party. There is some conflict of opinion on this question. On examining the provisions of the Transfer of Property Act relating to the rights conferred on the attaching creditor and contrasting them with the provisions of the Code of Civil Procedure relating to the array of parties it seems to me that there is no ground for holding that an attaching creditor is a necessary party to a mortgage suit. Section 91 of the Transfer of Property Act enumerates the persons entitled to redeem. In the first two clauses persons having an interest in the property are mentioned. The other clauses deal with those who have got a personal right to redeem. There is much force in the contention of Mr. Ramachandra Aiyar that in the latter category of casesthe right of redemption is given as an incident to the enforcement of the right which they possess to bring the property to sale. It is not an interest in property. Now if we turn to Section 85 of the Transfer of Property Act and to Order 34, Rule 1 we find it laid down that all persons having an interest either in the mortgage security or in the right of redemption should be made parties. The language is not ' all persons who are entitled to redeem the mortgaged property should be made parties.' Therefore while on the one hand, the legislature enjoins that persons who have an interest in the property should be before the court in order that their independent rights to the property may be effectually and completely determined, it does not insist that every person who may have a right to the surplus sale proceeds should be before the court. Under the scheme of rateable distribution embodied in Section 73 of the Code of Civil Procedure after paying the 1st mortgagee the subsequent encumbrancers are to be paid. And then, not only the attaching creditor will be given a share in the surplus proceeds, but every person who before realisation has applied for execution will be entitled to it. It is thus clear that the attaching creditor is only the instrument by which the property is brought before the Court. He secures no higher rights than any other money decree-holder in the distribution of the assets. It seems to me therefore that an attaching creditor is not a necessary party. To this extent I respectfully dissent from the view taken in Venkataseetharatnayya v. Venkataramayya I.L.R.(1913) Mad. 418, Kishen Lal v. Charat Singh I.L.R.(1901) All. 114 and Lakhpat Rai v. Fakhruddin I.L.R.(1917) All. 536 . I may point out that in the two Allahabad cases, the point was not considered. Having regard to the principle which the Judicial. Committee have repeatedly recognised (vide Raghunath Das v. Sundar Das Khetri I. L.R.(1918) Cal, 72 and Mina Kumari Bibi v. Bijoy Singh Dudhuria I.L.R.(1917) . Cal., 662 that an attaching creditor secures no interest by the fact of his attachment and having regard to the provisions of the law which I have examined, there is no ground in my opinion for holding that an attaching creditor ison the same footing as a puisne encumbrancer. Further if we look at the obvious inconveniences which a contrary view would land the parties in, I am not prepared to hold that the legislature intended to include an attaching creditor among the persons who have an interest in the property. An attachment may be in a Munsif's Court, the subsequent mortgage suit may be in a Sub-Court. It would be absurd to expect the mortgagee to enquire into the existence of attachments on this property before he institutes his suit. The title which an auction purchaser acquires under the mortgage decree would be exceedingly precarious, if it subjects him to the necessity of acquainting himself with particulars regarding previous attachment. So far as I am aware, such information cannot be easily gathered. When we remember that the Judicial Committee in a very recent case (vide Tilakdhari Lal v. Khedan Lal (1920) 39 M.L.J. 243 ) after a very elaborate examination of the provisions of the Registration Act have come to the conclusion that even registration is not notice, I am not prepared to hold that an auction purchaser under a mortgage decree is affected by the existence of a previous attachment under a money decree on the equity of redemption.
30. This leads me to the consideration of the last question whether even granting that the attaching creditor has an interest in the property, that interest was transmitted to the auction purchaser. I agree with Mr. Ramachandra Iyer on this question also.What the auction purchaser acquires is not the right of the attaching creditor, but the right, title and interest of the judgment-debtor. It is common knowledge that the certificate of sale to an auction purchaser under a money decree statedly refers only to the right, title and interest of the Judgment-debtor. How does the certificate which is the basis of the title of the auction purchaser convey to him the personal right which the judgment-creditor had of redeeming the mortgage An auction purchaser takes ordinarily only the rights of the judgment-debtor and I fail to see how he can claim to stand in the shoes of the judgment-creditor for purposes of enforcing the rights under Section 91, Clause (f) of the transfer of Property Act. Lakhpat Rai v. Fakhruddin I.L.R.(1917) All. 536 no doubt takes the contrary view : but I am unable to follow it for the reason given. Our attention was drawn to Shanandachandra Pal v. Sri Nath Rai Chowdury (1912) 17 C. W. N. 871 where a different view was taken. The learned Judges of the Calcutta High Court have not adverted to the aspect of the case which has influenced me in holding that nothing but the Judgment-debtor's right passes to the auction purchaser; but their conclusion supports my view, I am therefore of opinion that the present plaintiff who is only an auction purchaser is not entitled to sue for redemption. I agree with the order proposed by the learned Chief Justice.