1. The appellant here is the decree-holder in O.S. No. 27 of 1937 and he has attached certain property which he alleged to be the property of his judgment-debtors, defendants 1 and 2. The fourth defendant intervened with a claim petition in which it was asserted that the first and second defendants had contracted to sell the property to her and had duly put her in possession. There was thus, what was in effect, a plea under Section 53(A) of the Transfer of Property Act. The claim was dismissed in the first instance by the District Munsiff. There was then an appeal which was heard by the learned Subordinate Judge of Rajahmundry. He considered that the District Munsiff had dealt with the matter in too summary a fashion, as if it were merely a claim petition. He held that on the contrary, Section 47 applied and that the enquiry should be much more exhaustive. He, accordingly, remanded the suit to the District Munsiff for that particular kind of inquiry. No appeal was filed against the order of remand. After remand the learned District Munsiff again dismissed the claim. But, on appeal, the learned District Judge of East Godavari has allowed it. The question which alone was considered by the learned District Judge was one of fact as to whether the contract between defendants 1 and 2 and the fourth defendant was bona fide or not and holding that it was bona fide and in no sense entered into in order to defeat creditors, the District Judge, as has just been stated, has allowed the claim. This is now a second appeal by the decree-holder.
2. The first point which the decree-holder makes is that whatever may have been the situation as between defendant 4 on the one hand and defendants 1 and 2 on the other, defendant 4 cannot possibly have recourse to Section 53(A) of the Transfer of Property Act as against him. He says that he does not claim under defendants 1 and 2, his judgment-debtors. There is much plausibility in this argument. It is quite clear of course that, in the ordinary sense of the word,the interests of a judgment-creditor and of a judgment-debtor are distinctly adverse. The judgment-creditor cannot be called a legal representative of the judgment-debtor in the stage in which he is proceeding to attach the judgment-debtor's property. Until that property had been sold the title still remains with the judgment-debtor and it might plausibly be argued that there is no one claiming under him; the only claim to the ownership of the property is made by the judgment-debtor himself. The relationship of the judgment-creditor and judgment-debtor was discussed by me in a judgment in Pethuraja Kone v. Muthuswami Aiyar : AIR1942Mad128 and it was there pointed out, following the authority of Gnanambal v. Parvathi : (1892)2MLJ212 that the judgment-debtor could not be deemed to be, for the purposes of applying the doctrine of res judicata, the legal representative of the judgment-debtor. It is argued for the appellant that the same principle should hold good in the present appeal and that the language of Section 53(A) 'claiming under the transferor ' is equivalent to 'occupying the position of legal representative of the transferor.' On the other hand, the argument is equally plausible that the judgment-creditor makes no independent claim of his own. It is only because of his connection with the judgment-debtor that he is able to take these proceedings at all. And in that sense it might well be said that when the whole basis of the claim of the creditor is the fact that the judgment-debtor owed him money and has not been able to pay it, and is now bound by a decree, then he is claiming 'under' the judgment-debtor.
3. It seems to me that it is not easy to decide upon a mere question of the meaning of so apparently simple a word as under which of these two views is correct. But if the position is analysed, it will be seen that no practical advantage whatever can accrue to the appellant if his view be accepted. Attachment is only one stage in execution and unless attachment is followed by sale and purchase it is of no practical value to anyone. What now is the position when the attachment is followed by sale and someone whether the decree-holder or some stranger purchases the property? It can now no longer be denied that the purchaser is the legal representative of the judgment-debtor. In consequence any claim made by a party relying on Section 53-A against the purchaser cannot be dismissed on the ground that Section 53-A does not apply, since the purchaser clearly claims under the judgment-debtor. The result, therefore of holding that the attachment cannot be attacked would be completely nugatory for as scon as the sale is held, the rights of the respondent revive with irresistible force. In these circumstances I prefer to hold that the expression 'claiming under the transferor ' is wide enough in Section 53-A to include a judgment-creditor in the situation in which the appellant in this appeal now stands. On the facts, as already stated, the claim of the respondent based upon Section 53-A has been accepted and there can be no interference in this matter in second appeal.
4. The second point raised in appeal is that no appeal lay from the District Munsiff to the lower appellate Court and therefore the decree of the District Munsiff ought to be confirmed by this Court. The history of the litigation, as already given, shows that when an order of remand was passed by the Subordinate Judge, no appeal was filed against it. Under the provisions of Section 105(2) of the Civil Procedure Code the appellant is now precluded from disputing the correctness of the order of remand. He says in his present argument that no appeal lies because Section 47 does not apply to the facts of the case. The reason for the order of remand was that Section 47 did apply to the facts of the case. Being precluded from disputing the correctness of the order of remand, the appellant is clearly precluded from putting forward this argument. The second point, therefore, equally fails and the appeal must be dismissed with costs.