1. This case arises from an application put in by the appellant before us to exclude from Court-sale a property which he had purchased while it was under attachment under an agreement made between him, the decree-holders, and the judgment-debtor that, on the purchase money Rs. 200 being paid to the former, he should no longer execute the decree against the property purchased and that the attachment should be withdrawn. The decree holders have now transferred their decree to one Venkataramayya, the first respondent, and he is now trying to execute the decree by selling this very property. He has also applied for execution against the other properties as well: but we are not concerned with that portion of his execution application. The main question that has to be decided in this case on the facts found, is whether, because the property was under attachment at the time that the appellant purchased it, Section 64 of the Civil Procedure Code is a bar against his plea that the property should not be proceeded against in execution.
2. The District Munsif held that the section was not a bar as it did not make the alienation absolutely void but only void to the extent of the claims enforceable under the attachment and that the decree holders, having entered into an agreement and received full consideration for it that they would not proceed against the appellant's property, they were bound by that contract and could not rely upon Section 64 and insist on selling the property again. According to him, Section 64 being a section enacted for the benefit of decree holders, it was open to them to waive such a benefit.
3. Against the order of the Munsif there was an appeal to the Subordinate Judge. He also found all the facts in favour of the purchaser, namely that the sale deed Ex. A, by which he purchased the property had full consideration, that the agreement set up by him was true and that the purchase money was paid to the decree-holders in pursuance of that agreement. There seems to have been at the same time an arrangement that the purchase money was to be taken in full satisfaction of the decree. That was however an arrangement primarily for the benefit of the judgment-debtor: that arrangement, as it amounted to an adjustment of the decree between the parties, would fall under OrderXXI Rule 2 and could not be pleaded in execution; but, so far as the appellant's claim is concerned, his plea is only that the property purchased by him should not be sold and the only objection that could be raised against him is that Section 64 bars his plea.
4. The Subordinate Judge in appeal, though he found all the facts in favour of the present, appellant nevertheless, came to the conclusion that ' it could not be disputed that, as no satisfaction of the decree had been recorded, the decree continued in force and was executable against all the attached properties '. He thought that the transferee decree-holder was entitled to sell again the present appellant's property as if it had not been sold to him at all. It is not however clear whether he puts the case under OrderXXI Rule 2 or under Section 64 of the Civil Procedure Code, If it is the former, it is clear that that rule has no application so far as the purchaser, the appellant is concerned. He is not interested in insisting upon any adjustment of the decree. All that he is concerned with is that his property should not be sold in execution. It does not matter to him whether the decree should be executed or treated as adjusted so long as the contract between him and the original decree holders is enforced as against the latter and their transferee. OrderXXI Rule 2 does not therefore bar his contention.
5. As already stated the question that really arises is one of the construction and effect of Section 64 C.P.C. We are inclined to think that the view taken by the Munsif of this section is the correct one. The section is really one intended to benefit the decree-holders so that they may not be impeded by any alienation pending attachment in executing their decrees: That benefit being for the decree holder we are inclined to think that he could waive the benefit; and as in the present case, the decree holders had entered into an actual contract with the purchaser, they cannot be permitted to go back upon their contract and insist upon the application of Section 64 in their favour. To allow them to do so would be clearly to perpetrate a fraud. We see nothing in Section 64 that necessitates such a construction as that. Numerous authorities have been cited to us regarding the application of OrderXXI. Rule 2 but none of them have got any bearing on the present case and therefore we do not propose to refer to any of them. No case has been cited as regards the construction of Section 64. We have therefore to decide the question arising here on the language of that section. There is no particular public policy underlying the section which makes it incumbent on the court to avoid an alienation pending an attachment, the section being intended only to help the decree holder to realise his decree amount.
6. It was finally argued that whatever obligations there might be upon the decree-holder to act according to his agreement such obligations did not pass to the transferee decree-holder and that it was open to him to sell the property in execution. We are unable to accept this argument, for the transferee decree-holder in this case is proved to have had knowledge of the agreement between the decree-holders and the purchaser before transfer. Further more a transferee decree-holder can be allowed to put forward only such rights as the decree-holder had at the time of the transfer; and, as in this case the decree-holder was bound by the arrangement, we must take it that the transferee was also bound by it. The case cited in Krishna Ayyar v. Savurimuthu Pillai (1918) 36 M.L.J. 376 has no bearing on the present case at all for there the transferee decree-holder was entirely within his rights, because the decree holder himself had the right of executing the decree in spite of the anterior adjustment with the judgment-debtor, as that adjustment had not been certified to the court under OrderXXI, Rule 2. If we may respectfully say so, it was rightly held that there was no cause of action against the transferee. The cause of action against the decree-holder was based on his failure to perform his statutory duty of certifying to the court the adjustment that he had entered into with the judgmect-debtor. Such a duty did not devolve upon the transferee at all.
7. The point has also been taken before us that no second appeal lies in this case as the matter arises in the execution of small cause decree. This seems to be so and the second appeal must therefore be dismissed; but, we are prepared to allow the second appeal to be converted into a revision petition under Section 115 of the Civil Procedure Code. It is argued for the appellant that in that view we should set aside the decree of the lower court as well. But Section 102 does not affect the right of appeal from such a decree but only the right of second appeal. It is not necessary to decide if there was a right of appeal in this case under Section 47 of the Civil Procedure Code on the ground that the purchaser of a property attached is a representative of the judgment-debtor in disputing the right of the decree-holder to sell it, as we are setting aside the Subordinate Judge's order on another ground.
8. Assuming the appeal was a competent one we must still hold that the order of (he Subordinate Judge was one falling under Section 115 of the Civil Procedure Code as he entirely misconstrued the legal position in the case and refused to release the property from attachment as he should have done. Having found that there was an agreement as pleaded by the purchaser, and having found all the facts in his favour, the Subordinate Judge has, by a mistake of law that he made, declined to give effect to his findings and to release, the property from attachment as he should have done. Where a court by an erroneous view of the law refuses to exercise a power which it has got or exercises a power which it assumes it has but it has not really got, the case would be one falling under Section 115 of the Civil Procedure Code. We may refer to the most recent decision of the Full Bench of this Court in Sundaram v. Mansa Mavuthar 40 M. L. J. 479 (F.B.) for this view.
9. In these circumstances we think this is a fit case for interference under Section 115 of the Civil Procedure Code and we set aside the order of the Subordinate Judge and restore that of the District Munsif, As regards costs, we think it right to make the parties bear their own costs in the lower appellate court and in this court.