1. The appellant here held a decree against one Doraiswami, the second defendant in the suit from which this second appeal arises. Another decree-holder against the same Doraiswami was one Nalluswami Nayudu. Nalluswami Nayudu had brought certain property belonging to Doraiswami to sale in execution of his decree on the 29th August, 1934, and three other decree-holders including the present appellant had applied for rateable distribution. Meanwhile, however, Doraiswami applied first under Rule 90 and then under Rule 89 of Order 21, for setting aside the sale. Upon filing the application under Rule 89, he no longer pressed the application under Rule 90, which was dismissed. The application under Rule 89, was eventually allowed and the sale set aside on the 31st of October, 1934.
2. In the meanwhile two events happened. On the 20th of September, the judgment-debtor sold the property which was the subject-matter of the sale to the plaintiff and on the 29th September, the appellant who had filed an execution application for the attachment of this property on the 29th of August, had the attachment effected. Further proceedings in E.P. No. 888 of 1934 included a claim petition by the plaintiff based upon his sale deed from the second defendant and after it was dismissed the present suit was filed by the plaintiff on the 13th of March, 1935.
3. The plaintiff's suit has been resisted by the appellant on the ground that the sale deed from the second defendant to the plaintiff conveys no title which can be enforced against the rights of the appellant under Section 64 of the Code. As the lower appellate Court has decided against the appellant on this point the present second appeal has been filed.
4. The appellant relies upon what one might call a general impression of the rights conveyed by Section 64, without too close a scrutiny of the actual language of the section. He argues that because he has made a claim on the 29th of August, 1934, which would obviously come within the explanation to S.. 64, he can now in the circumstances which have obtained during the pendency of the plaintiff's suit rely upon that claim which was then made. It seems to me quite obvious that in deciding the relative rights of the plaintiff and the appellant we must consider the situation as it existed after the filing of the plaintiff's suit. There can, in my opinion, be no doubt that when the plaintiff filed his suit in March, 1935, the appellant could no longer make any claim for rateable distribution of the assets received from the sale of this property on the 29th of August, 1934. He cannot possibly therefore be said to be making any claim in this suit against the plaintiff based upon the explanation to Section 64 or his action on the 29th of August 1934. In order to make a claim against the plaintiff he must establish that there is some attachment on the basis of which he has a claim enforceable against him. Of course, if he could argue successfully that the attachment which formed the basis for the sale on the 29th of August, 1934, had continued to exist in spite of the setting aside of the sale then he might rely upon Section 64 as giving him a claim against the plaintiff. It seems to me however obvious that the result of setting aside the sale is to put an end to that attachment. Whatever rights the other creditors might have under S.. 73, there was only one creditor who attached the property. The attachment proceeded logically to a sale and when that creditor's sale was set aside and his claim was satisfied it seems to follow beyond all doubt that that particular attachment had come to an end. I am of the opinion, therefore, that it is impossible in any circumstances for the appellant here to say that he now has a claim enforceable under the earlier attachment which was effected in 1934, before the sale of the 29th of August. I have been referred to two Pull Bench rulings of this Court in Annamalai Chettiar v. Palamalai Pillai : AIR1918Mad127 and Nona Baa v. Arunachalam Chettiar I.L.R. (1940) Mad. 526. They do not seem to me to afford the slightest support to the argument for the appellant. Nor is it possible to say that the facts in this case are so similar that they are binding upon me in deciding this appeal against him. It seems to me unnecessary therefore to consider these rulings any further.
5. The next point which has been brought forward in support of the appeal is that inasmuch as the second attachment was effected on the 29th of September and the sale was not set aside until the 31st of October, the plaintiff cannot acquire any rights until the 31st of October, and therefore those rights are defeated by the attachment made in favour of the appellant. It is impossible in my opinion to accept this argument. No doubt until the Court passed its orders on the 31st October, it was impossible to know with whom lay the true title to the land. If the sale had been confirmed the true title to the land from the 29th of August onwards would have lain with the auction purchaser. But the effect of the setting aside of the sale is clearly to declare that from, the 29th of August onwards the title lay with the judgment-debtor. On the 20th of September, therefore, the judgment-debtor had a good title to convey to any alienee, and it must be held that he did convey that good title to the plaintiff. The attachment effected nine days after the sale to the plaintiff cannot, therefore, possibly affect the plaintiff's rights.
6. The final point made in the appeal was that this alienation should be set aside under Section 53 of the Transfer of Property Act as being in fraud of the appellant. That matter is a pure issue of fact upon which the decision of the lower appellate Court is against the claim of the appellant. It cannot now be agitated afresh in the second appeal.
7. In the result this appeal fails on all points and is dismissed with costs. Leave is refused.