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Venkatasami Naidu Vs. Gurusami Aiyar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1920)43MLJ441
AppellantVenkatasami Naidu
RespondentGurusami Aiyar
Cases ReferredVeyindramnthu Pillai v. Maya Nadan
Excerpt:
- - 3. it is well established that an attachment confers no interest in the property which is in custodia legis and the effect of attachment is to render any private alienation void as against all claims enforceable under the attachment (see civil procedure code, section 64 and krishna bai v. 413. the attachment does not prevent a transfer of the property under an order of court and therefore an order of adjudication in the insolvency which vests the property of the debtor in the official assignee is good as against an attaching creditor see raghunath das v......should be allowed and that the respondent should not be permitted to proceed to the sale of the property in question unless or until the sale to the appellant has been set aside by an order or decree of court and we order accordingly. the execution application is dismissed. appellant will get his costs here and in the lower courts.7. the civil revision petition follows a.a.a.o. no. 108. of 1918. no order is necessary.
Judgment:

1. Both parties in the case attached the property of same person before judgment in their respective suits against him, and both obtained decrees for money, one in the Court of the District Munsif of Tanjore and the other of Valangiman. Both parties applied in the Court of the District Munsif of Valangiman for execution of their respective decrees, but the first application of the respondent was dismissed. The appellant's application resulted in a Court sale in which he purchased the attached property.

2. The respondent has now again applied for a sale of the same property in execution of his decree, and the appellant has applied in those proceedings for an order that the the application may be dismissed on the ground that the has become the owner of the property.

3. It is well established that an attachment confers no interest in the property which is in custodia legis and the effect of attachment is to render any private alienation void as against all claims enforceable under the attachment (See Civil Procedure Code, Section 64 and Krishna Bai v. The Collector and Government Agent, Tanjore I.L.R. (1907) Mad. 413. The attachment does not prevent a transfer of the property under an order of Court and therefore an order of adjudication in the Insolvency which vests the property of the debtor in the Official Assignee is good as against an attaching creditor See Raghunath Das v. Sundar Das Khetri I.L.R. (1914) Cal. 72 and Erikulappa Chetty v. The Official Assignee Madras I.L.R. (1915) Mad. 903. This principle is implied in the provisions of Civil Procedure Code, Section 73 under which persons who have applied for execution of their decrees are entitled merely to share the assets realised and it is clear that in the absence of fraud, (See Order 21 Rule 90) such persons cannot object to the sale of the property of their judgment-debtor by the Court.

4. The ownership of the property passed to the appellant from the moment that the sale was knocked down to him, and the judgment-debtor retained no interest in it which can be attached or sold (See Section 65 Civil Procedure Code). It has been stated that proceedings by way of suit are pending to set aside the decree and sale thereunder to the appellant. If those proceedings are successful the respondent may be able to enforce his decree against' any interest which thereby becomes vested again in his debtor but he cannot now sell a merely speculative interest in these proceedings.

5. It has been argued that the provisions of Order 21 Rule 58 to 63 apply to this case, and the heading of the appellants application referred to them; but we do not think that they apply, because the ground of an application under them is that the property in question is not liable to attachment. In the present case the respondent was originally entitled to attach the property of his debtor but he is not entitled to proceed to sale because the Court has already disposed of the property. It was also objected that the appellant not being the representative of any of the parties to suit in which the decree was passed had no locus standi to make this application under Section 47 Civil Procedure Code; but Mr. Jayarama Aiyar withdrew this objection in the course of the arguments, and after the recent Full Bench decision in Veyindramnthu Pillai v. Maya Nadan (1919) 43 Mad. 107 : 38 M.L.J. (F.B.) we do not think it can be denied that the appellant having purchased the interests of the judgment-debtor is his representative for the purpose of Section 47.

6. We think that the appeal should be allowed and that the respondent should not be permitted to proceed to the sale of the property in question unless or until the sale to the appellant has been set aside by an order or decree of Court and we order accordingly. The execution application is dismissed. Appellant will get his costs here and in the lower courts.

7. The Civil Revision Petition follows A.A.A.O. No. 108. of 1918. No order is necessary.


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