Skip to content


Venkatasawmy Naidu Vs. Gurusawmi Iyer - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.616
AppellantVenkatasawmy Naidu
RespondentGurusawmi Iyer
Cases ReferredVeyindramuthu Pillai v. Maya Nadan
Excerpt:
.....effect of--subsequent application for sale by other plaintiff, whether maintainable. - - 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 sankaralinga reddi v. 365. the attachment does not prevent a transfer of the property under an order of court, and, therefore, an order of adjudication in insolvency which vests the property of the debtor in the official assignee is good as against an attaching creditor see raghunath das v......is clear that, in the absence of fraud, (see order xxi, 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 of, 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.....
Judgment:

1. Both parties in this case attached the property of the 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 in that 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 application may be dismissed on the ground that he 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 Sankaralinga Reddi v. Kandasimi Tevan 30 M.L 413 : 17 M.L.J. 334 : 2 M.L.T. 365. The attachment does not prevent a transfer of the property under an order of Court, and, therefore, an order of adjudication in 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 24 Ind. Cas. 901 : 42 C.P 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 Bom. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 : 1 L.W. 567 : 16 M.L.T. 353 : (1914) M.W.N. 747 : 20 C.L.J. 555 and Errikullapa Chetty v. Official Assignee of Madras 32 Ind. Cas. 190 : 39 M.P 903 This principle is implied in the provisions of the 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 XXI, 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 of, 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 XXI, Rules 58 to 63, apply to this case, and the heading of the appellant's 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 the suit in which the decree was passed, had no locus standi to make this application under Section 47, Civil Procedure Cede, but Mr. Jayarama Aiyar withdrew this objection in the course of the arguments, and after the recent Full Bench decision in Veyindramuthu Pillai v. Maya Nadan 54 Ind. Cas. 209 : (1919) M.W.N. 881 26 M.L.T. 391 : 38 M.L.J. 32 : 43 M.P 107 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 riot 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 Appeal against Appellate Order No. 108 of 1918. No orders are necessary.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //