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N. Seshagiri Ayyar Vs. T.N. Ramachandra Ayyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad570
AppellantN. Seshagiri Ayyar
RespondentT.N. Ramachandra Ayyar and ors.
Cases Referred and Arunachalam Chetty v. Periaswami Servai A.I.R.
Excerpt:
- - , does not seem quite satisfied that the phrase 'an objection made to the attachment of property attached in execution of a decree' covers an objection made to an attachment of property before judgment; how then could it be within the meaning of order 21, rule 58; for precisely the same term is used 'property attached in execution of a decree? 163. and the present case seems to afford a good example of the danger of applying rule 63 with all its implications to objections against attachments before judgment......c. j., does not seem quite satisfied that the phrase 'an objection made to the attachment of property attached in execution of a decree' covers an objection made to an attachment of property before judgment; because in the latter case he holds that it cannot be laid down generally that property attached before judgment is attached ' in execution of a decree' within the meaning of article 11, lim. act. how then could it be within the meaning of order 21, rule 58; for precisely the same term is used 'property attached in execution of a decree?' considering that the civil procedure code and the limitation act are invariably regarded as in pari materia, it would be very hard to reconcile the two cases in mallikarjuna prasada nayudu v. virayya [1918] 41 mad. 849 and arunachalam chetty.....
Judgment:

Jackson, J.

1. The appellant as receiver in a certain suit attached a debt due from the garnishee, defendant 3, to defendants 1 and 2. In another suit one Nemasah had attached the same debt, and he adjusted his claim, arranging that the debt of the garnishee should be made over to himself a day before the appellant's attachment took effect. Of course Nemasah was not in any way debarred from making a private transfer by his own attachment. Section 64, Civil P.C., avoids transfers contrary to, not (during the continuance of, the attachment. Nor can it be argued that the appellant had any right to interfere with the transaction before his attachment was effective. He may have been a potential decree-holder, but potential decree-holders have no right to rateable distribution. The appellant's claim can only be based on the circumstance that the garnishee objected to his interim attachment, and it was made absolute: vide Ex. C. This objection was under Order 21, Rule 58; and Rule 63 will also apply, as settled in Mallikarjuna Prasada Nayudu v. Virayya [1918] 41 Mad. 849. Subject to the result of a suit the order is conclusive. But the order can hardly be said to be {conclusive of the garnishee's rights. It has been held that it is not the business of the Court to determine in these attachment proceeding's whether the debts are really due. Ma Saw Yin v. Hockto A.I.R. 1926 Rang. 175, and in the present case it is quite clear as pointed out by the District Munsif, that the Court never determined that question, or indeed heard the garnishee on the matter. All that it did was to attach the debt at its face value, and the effect of that attachment would be to prevent any subsequent transfer; but its effect would not be to avoid a previous transfer.

2. I may observe that if the decision in Mallikarjuna Prasada Nayudu v. Virayya [1918] 41 Mad. 849 be read in the light of Arunachalam Chetty v. Periaswami Servai. Wallis, C. J., does not seem quite satisfied that the phrase 'an objection made to the attachment of property attached in execution of a decree' covers an objection made to an attachment of property before judgment; because in the latter case he holds that it cannot be laid down generally that property attached before judgment is attached ' in execution of a decree' within the meaning of Article 11, Lim. Act. How then could it be within the meaning of Order 21, Rule 58; for precisely the same term is used 'property attached in execution of a decree?' Considering that the Civil Procedure Code and the Limitation Act are invariably regarded as in pari materia, it would be very hard to reconcile the two cases in Mallikarjuna Prasada Nayudu v. Virayya [1918] 41 Mad. 849 and Arunachalam Chetty v. Periaswami Servai A.I.R. 1921 Mad. 163. And the present case seems to afford a good example of the danger of applying Rule 63 with all its implications to objections against attachments before judgment. However that is obiter. In this case, as shown above, I see no reason to differ from the lower appellate Court that the claim of the garnishee was not concluded by the order on the appellant's petition for attachment.

3. The appeal is dismissed with costs.


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