1. We regret we have not had the advantage of an argument on behalf of the respondent, But on the best consideration we could bestow on the case, we think the Courts below are wrong.
2. It is alleged in the plaint that the first defendant entered into an agreement with the plaintiff in 1902 to sell certain property to him and placed the plaintiff in possession of it. The 2nd defendant obtained a decree for money against the first defendant and attached the suit property in execution. The plaintiff preferred a claim, which was dismissed. But during the subsistence of the defendant's attachment the 1st defendant executed a registered conveyance in the plaintiff's favour on the 5th November 1907. The plaintiff asks for a declaration of his right to the property. The plaintiff also charges that, the 2nd defendant's decree against the 1st defendant was collusive. The Courts below have dismissed the suit on the preliminary ground that there was no right to sue on the allegations contained in the plaint. Section 276 of the Civil Procedure Code of 1882, declares a private alienation of property attached during the continuance of the attachment void against all claims enforceable under the attachment. The two questions to be determined are (1) whether the sile to the plaintiff was a private alienation, and (2) whether the 2nd defendant's claim is enforceable under the attachment. The title of the plaintiffs is based upon the sale-deed executed by the 1st defendant. It must, therefore, be treated as a private alienation within the meaning of the section. It is true the alienation was in pursuance of a prior obligation. But from the mere fact of there being an obligation to convey, it is impossible to contend that the alienation by which the property was conveyed was not a private alienation. See Divendronath, Sanyal v. Ram Coomar Ghose 8 I.A. 65 : 7 C. 107 : 10 C.L.R. 281. Suppose, however, at the time of attachment a decree for specific performance had been made in a suit upon the agreement to convey, a subsequent conveyance in execution of that decree, though an act inter partes, may not be treated as a private alienation pure and simple. In Qurban Ali v. Ashraf Ali 4 A. 219, the Full Bench of the Allahabad High Court held that a conveyance in pursuance of an award directing a transfer of property by way of sale subsequent to an attachment made after the award and before the decree was passed in terms of the award was no private alienation within the meaning of Section 276 of the Code and, therefore, not void under the section against a claim enforceable under the attachment. The alienation though strictly an act of parties was deemed to be not a private alienation because it was in performance of a direction of the Court. But where there is no such direction, the mere fact of there being an agreement which obliges a party to carry it out by the execution of a conveyance cannot render the alienation other than private.
3. The second question, however, remains whether the 2nd defendant has a claim enforceable under the attachment. This brings into view the further problem as to the effect of an agreement to convey upon the rights of the purchaser under a subsequent attachment. Clause (b) of Section 27 of the Specific Relief Act provides that a contract may be enforced against 'any other person claiming under him (either party thereto) by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract.' The exception here appears to refer to the private purchase without notice. A purchaser in Court-sale who takes the property subject to all the liabilities in the hands of the judgment-debtor and who has no more rights than the judgment-debtor himself has, except where the decree holder is enabled to give a larger title, is amongst the 'other persons' against whom a contract may be specifically enforced. In Brunton v. Neale 14 L.J. Ch. 8. A entered into an agreement for the purchase of an estate and paid a deposit and entered into possession, but did not pay the remainder of the purchase money. Afterwards a creditor of the vendor obtained a judgment against him, sued out an elegit and brought an action of ejectment against A. A filed a bill against the vendor and the judgment-creditor for specific performance of the agreement and for an injunction to restrain the judgment-creditor from proceeding in the action against him. It was held by the Lord Chancellor that he was entitled to the injunction. In Dart's Vendors and Purchasers, 7th Edition, Volume II, page 1030, the learned author says:-- Equity will enforce specific performance of the contract for sale against the vendor himself and also his trustee in bankruptcy or committee in lunacy or voluntary alienees or judgment-creditors etc.' If the plaintiff, therefore, would have specific performance against the attaching creditor, the 2nd defendant, his claim under the attachment is not enforceable against the sale which is performance of the contract to convey. It appears, therefore, to follow from the plaintiff's sale being in pursuance of a contract anterior to the attachment, it is not void against claims under the attachment which are not enforceable against a prior contract to sell. But the plaintiff went on to allege in his plaint that the 2nd defendant's decree was collusive; if the decree itself was brought about with a view to defraud a person who has contracted to purchase the property of the 1st defendant, the plaintiff's purchase of the property must be unaffected by proceedings under a collusive decree.
4. We must reverse the decrees of the Courts below and remand the case to the District Munsif for disposal according to law. The costs hitherto incurred will be provided for in the final decree.