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Kashy Nath Roy Chowdhry Vs. Surbanand Shaha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal317
AppellantKashy Nath Roy Chowdhry
RespondentSurbanand Shaha and ors.
Cases Referred and Lalla Joogul Kishore Lall v. Bhukha Chowdhry
Excerpt:
attachment - execution of decree--sale at instance of one attaching decree-holder during pendency of other attachments--priority of attaching creditors--rival decree-holders-- civil procedure code (act viii of 1859), sections 240, 242 and 270, and (act xiv of 1882), sections 284 and 295. - .....made by the judgment-debtor himself in the benami of the two aforesaid persons. subsequently in hurrish chunder's execution, the property in dispute was again sold without a, fresh attachment on the 20th april 1876, but intermediately the defendants nos. 5 to 10 purchased mouzah baligram, which is a part of the disputed property, on the 25th august 1875, ostensibly from the auction-purchasers chunder mohun sen and sriram chuckerbutty, but really from the judgment-debtor, viz., the defendant no. 1.4. the munsif was of opinion that this purchase is invalid against the plaintiff who has purchased the property in dispute from the auction-purchaser in the second sale, viz., that held on the 20th april 1876, because on the date of the defendants' purchase, the property sold was under.....
Judgment:

Mitter and Macpherson, JJ.

1. The question which we have to determine in this case is, whether the kobala, dated 25th August 1875, executed by Chunder Mohun Sen, ancestor of the defendants Nos. 2 and 3, and Sriram Chuckerbutty defendant No. 4, in favour of defendants 5 to 10, of mouzah Baligram, was invalid under Section 240 of Act VIII of 1859, it being a private alienation by the judgment-debtor while the property was alleged to be under attachment.

2. The facts, as found by the Mnnsif in this case, are as follows:

3. The property in dispute, viz., a 10-gunda share of taluk Mohadeb Munshi was the property of defendant No. 1. Two persons, viz., Hurrish Chundra Kurmokar and Shama Churn Bhundopadhya; held money decrees against the defendant No. 1. Hurrish Ghunder attached the property in dispute on the 12th June 1875. While it was under this attachment, it was sold in execution of Shama Churn's decree on the 9th July 1875 and purchased by Chunder Mohun Sen, ancestor of defendants Nos. 2 and 3, and Sriram Chuckerbutty, defendant No. 4. This purchase is found to have been made by the judgment-debtor himself in the benami of the two aforesaid persons. Subsequently in Hurrish Chunder's execution, the property in dispute was again sold without a, fresh attachment on the 20th April 1876, but intermediately the defendants Nos. 5 to 10 purchased mouzah Baligram, which is a part of the disputed property, on the 25th August 1875, ostensibly from the auction-purchasers Chunder Mohun Sen and Sriram Chuckerbutty, but really from the judgment-debtor, viz., the defendant No. 1.

4. The Munsif was of opinion that this purchase is invalid against the plaintiff who has purchased the property in dispute from the auction-purchaser in the second sale, viz., that held on the 20th April 1876, because on the date of the defendants' purchase, the property sold was under attachment put upon it on the 12th June 1875. The Subordinate Judge was of a contrary opinion. He held that, after the attachment effected in Hurrish Chunder's decree in June 1875, the property in dispute having been sold on the 9th July 1875 under Shama Churn's decree, the attachment of June 1875 came to an end.

5. We are of opinion that the view taken by the Subordinate Judge upon this point is correct. It was held, under Act VIII of 1859, that priority of attachment does not give a decree-holder the right to set aside a sale made by another decree-holder on a subsequent attachment. See Mohunt Nanak Buksh v. Koonwar Roy 2 W.R. 62; Lalla Joogal Kishore Lall v. Bhukha Chowdhry 9 W.R. 244 and Chutka Panda v. Gobordhone Dass 6 C.L.R. 85. It follows, therefore, that when a judicial sale takes place at the instance of a particular creditor, no other creditor holding decrees against the same judgment-debtor and who had attached the same property either before or after the date of the attachment effected at the instance of the creditor under whose decree it is sold, has any right to bring it to sale again. Although this view of the law was doubted in some of the cases decided under Act VIII of 1859, see the observations of Sir Barness Peacock, C.J. in the case of Gogaram v. Kartick Chunder Singh B.L.R. Sup. Vol. 1022 : 9 W.R. 514, and of Sir Richard Couch, C.J. in Guru Prasad Sahu v. Mussamat Binda Bibi 9 B.L.R. 180 the decisions were not expressly overruled, neither is there any provision in the present Code of Civil Procedure which shows that the Legislature disapproved of the law laid down in the cases cited above. Not only is there no such provision in the present Code of Civil Procedure, but Section 295, which corresponds with Section 270 of the old Code, clearly indicates that the Legislature adopted the view taken in Mohunt Nanak Buksh v. Koonwar Roy 2 W.R. 62 and Lalla Joogal Kishore Ball v. Bhukha Chowdhry 9 W.R. 244. It must, therefore, be now taken to be settled law, that when a property is sold in execution of a decree, it cannot be sold again at the instance of a decree-holder who had attached it before the attachment effected by the decree-holder under whose decree it is actually sold.

6. It seems to us that one of the consequences which follows from this ruling is that, on the happening of a judicial sale, all previous attachments effected upon the property sold fall to the ground. The object of attachment is to prevent the judgment-debtor from dealing with the property by way of private alienation. The provisions of Section 295 of the present Code of Civil Procedure show that when a property is sold in execution of a decree it is sold not only for the realization of the money due under that particular decree, but of all other decrees, the holders of which have prior to the sale applied to the Court for execution of their decrees. Although this provision is not exactly similar to the provisions of the corresponding section of the old Code, viz., Section 270, still both are based upon the same principle, viz., that a sale in execution of a decree does not enure to the benefit of that decree-holder only at whose instance the property is sold, but also of other decree-holders who have fulfilled certain conditions. Therefore, the sale which took place under Shama Churn Bundopadhya's decree on the 9th July 1875, was not only a sale for the realization of the money due under his decree, but also of the decree of Hurrish Chunder Kurmokar, who had applied for execution and taken out the process of attachment. Under Section 270 of Act VIII of 1859, Hurrish Chunder was entitled to share in the sale proceeds.

7. Having regard to the object of attachment as stated above, it follows that on the sale of the 9th July 1875, the attachment effected by Hurrish Chunder came to an end. If this were not so, the rulings cited above, which as we have shown above were approved of by the Legislature, would be virtually overruled by the provisions of Section 284 of the present Code of Civil Procedure for the following reason. In the Full Bench case of Anand Chandra Pal v. Panchi Lall Sarma 5 B.L.R. 691 Couch, C.J. in delivering the judgment of the majority of the Court, says, with reference to Section 242 of the old Code which corresponds with Section 284 of the present Code: 'Now it is a rule that when a Statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application. This has been often decided, and it is sufficient to quote the cases of Macdougall v. Paterson 11 C.B. 755; Crake v. Powell 2 E. and B. 210; and Bowes v. Hope Life Insurance Co. 11 H.L.C. 389. In those cases the word used in the Statute was 'may.' According to this rule the words, 'it shall be competent to the Court,' in Section 242 must not be construed as giving to the Court a power which it may exercise or not as it thinks fit, but as obligatory and conferring on the attaching creditor a right to have the attached property sold and the money realized by the sale, paid to him.' That being so, if the attachment of Hurrish Chunder continued after the 9th July 1875, on his application it was obligatory on the Court under Section 242 of the old Code to sell the property again, which would be virtually overruling the decisions cited, i.e., Mohunt Nanak Buksh v. Koonwar Roy 2 W.R. 62 and Lalla Joogul Kishore Lall v. Bhukha Chowdhry 9 W.R. 244.

8. For these reasons we are of opinion that the Subordinate Judge has taken a correct view of the effect of the attachment under Section 240 of the old Code. The sale, therefore, in favour of defendants Nos. 5 to 10 of mouzah Baligram was not invalid. That being so, the plaintiff's suit as against them, so far as this mouzah is concerned, was rightly dismissed; but the Subordinate Judge goes further and dismisses the whole suit. We do not see upon what ground he has done so. The defendants Nos. 5 to 10 question the plaintiff's title in respect to Baligram only. We, therefore, modify the decree of the lower Appellate Court and direct that the plaintiff's suit be dismissed in respect of mouzah Baligram. With this exception the decree given by the Munsif will stand.

9. Under the circumstances of this case, we think that each party should bear his own costs in this Court and in the lower Appellate Court.


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