Skip to content


Baidya Nath Pandey and anr. Vs. Hemlata Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1936Cal26
AppellantBaidya Nath Pandey and anr.
RespondentHemlata Dasi and ors.
Cases ReferredJogendra Nath Chatterji v. Monmatha Nath Ghose
Excerpt:
- .....had the right to apply under section 174, clause (1) ben. ten. act, for setting aside a rent sale. the facts are not disputed and the question raised before me is a pure question of law and on that the question of jurisdiction of the lower courts depends. both the lower courts have held that the petitioners have no locus standi to make and maintain the said application.2. the petitioners before me obtained a mortgage decree against opposite parties nos. 8 to 10. the preliminary decree was passed on 5th january 1933 and the final decree was passed thereafter. on 6th january 1933 the petitioners made an application for attachment before judgment of some properties belonging to opposite parties nos. 8 to 10 other than properties included in the mortgage and covered by the.....
Judgment:
ORDER

1. The question raised in this rule is whether the petitioners had the right to apply under Section 174, Clause (1) Ben. Ten. Act, for setting aside a rent sale. The facts are not disputed and the question raised before me is a pure question of law and on that the question of jurisdiction of the lower Courts depends. Both the lower Courts have held that the petitioners have no locus standi to make and maintain the said application.

2. The petitioners before me obtained a mortgage decree against opposite parties Nos. 8 to 10. The preliminary decree was passed on 5th January 1933 and the final decree was passed thereafter. On 6th January 1933 the petitioners made an application for attachment before judgment of some properties belonging to opposite parties Nos. 8 to 10 other than properties included in the mortgage and covered by the preliminary mortgagedecree. The statement in that application was that they obtained a preliminary mortgage decree a day previously and there was no chance of the whole amount decreed being recovered by sale of the mortgage properties. They accordingly wanted an attachment of properties other than properties included in the mortgage, in order that they might be secured so far as their personal decree was concerned, a decree which they expected to get.

3. The notice was issued upon the opposite parties Nos. 8 to 10 to show cause why the said properties should not be attached before judgment. On 20th February 1934 the final order attaching the said properties before judgment was made. One of the properties so attached is the subject--matter of the present rule. Opposite parties Nos. 1 to 7, viz., the Banerjees and Roy Choudhuris who were the landlords of opposite parties Nos. 8 to 10 the Mitters, instituted a suit to recover rent and obtained a decree. They put up the rent decree into execution and a sale was held under the provisions of Chap. 14, Ben. Ten. Act, on 19th June 1934 and the opposite party No. 11 Balaram purchased the defaulting tenure. He only appears in this Rule and opposes it. On 17th July 1934 the petitioners applied under Section 174 (1) to set aside the rent sale by making the necessary deposit. On 11th September 1934 they made an application in their mortgage suit for a personal decree under the provisions of Order 34, Rule 6, Civil P. C., but the proceeding started in that application was stayed by an order dated 13th November 1934. It is admitted that no personal decree has yet been passed against opposite parties Nos. 8 to 10 and in favour of the petitioners.

4. Section 174 (1) gives to two classes of persons, the right to make the application, viz.(1) the judgment--debtor in the rent suit and (2)any person whose interests are affected by the rent sale. The words of Section 174 (1) are pari materia with the provisions of Order 21, Rule 90, Civil P. C., because besides the judgment-debtors and persons entitled to share in the rateable distribution of assests, persons whose interests are affected by the sale, are given the right to apply under Order 21, Rule 90 of the Code. The question therefore, is whether the persons who have attached before judgment the property put up to sale in execution of a rent decree, have the right to apply under Section 174, Ben. Ten. Act. I agree with the decisions of this Court which have laid down that the words ' whose interests are affected by the sale ' are not limited to persons whose proprietary or possessory interests are affected. They include also persons whose pecuniary interests are affected by the sale. The question therefore, reduces itself to this, viz., whether a person who has obtained an attachment before judgment but has not got a decree in his suit, is a person whose pecuniary interests are affected by the rent sale. There cannot be any doubt on the authorities that a person who attaches the property put up at a rent sale, for the purpose of enforcing his decree, is a person whose pecuniary interests are affected by the sale and he will have the undoubted right to make the application under Section 174.

5. I am also of opinion that a person who has attached before judgment the property subsequently put up at a rent sale, and who before his application under Section 174, has obtained a decree in his suit is also a person whose pecuniary interests are affected by the rent sale. My reason is this that in accordance with the provisions of Order 38, Rule 11, such a person has not to apply for re--attachanent of the property which has already been attached before judgment. As soon ,as he gets a decree in the suit the attachment before judgment has the effect in the eye of law of an attachment in execution of the decree. The cases of Dhirendra Nath Roy v. Kamini Kumar Pal 1924 Cal 786 and Gopinath Harishchandra v. Kukari Protap Chandra Saha 1934 Cal 477 are of the latter type. The facts as reported in the judgments appear to be that the person who made an application under Order 21, Rule 90, was a person who had obtained attachment before judgment in his suit but had before the application, obtained a decree. Those cases are, therefore, distinguishable. The case before me is governed by the judgment pronounced by a Division Bench of this Court in the case of Jogendra Nath Chatterji v. Monmatha Nath Ghose (1913) 15 1 C 658 and a decision of a single Judge in the case of Badian Rahaman v. Saroda Kanta Dutt 1925 Cal 1103. In both these cases the person who applied to set aside the sale under Order 21, Rule 90, was a person who had simply attached before judgment the property, the sale of which was sought to be set aside, but had not on the date of the application obtained a decree in his suits. In the first mentioned case Mookerjee, J., points out the distinction between an attachment before judgment and an attachment in execution of a decree, and this distinction is founded on the provisions of the statute itself. At p. 81 of the report he makes this observation:

As was pointed out by Woodroffe, J., in the case of Sewdut Roy v. Sree Canto Maity (1906) 33 Cal 639 the object of an attachment before judgment is simply to safeguard the property, so as to enable the plaintiff to realize the amount of his decree if he should get one ...... substantially, the same view was taken in the case of Basiram Malo v. Kattyani Debi (1911) 38 Cal 448 where the distinction between the two kinds, of attachments, namely of attachment before judgment and attachment in execution, was explained, and it was pointed out that the objects for which the two kinds of attachments are made are entirely different. An attachment prior to decree is not an attachment for the enforcement of the decree, but it is a step taken merely for the purpose of preventing the debtor from denying or obstructing such enforcement when the decree subsequently passed shall be sought to be executed. An attachment after decree, on the other hand, is an attachment made for the immediate purpose of carrying the decree into execution, and it presupposes an application on the part of the decree--holder to have his decree executed. .... The position of a person who has obtained an attachment before judgment and has not yet obtained a judgment, is that he has a chance of obtaining a judgment for the satisfaction whereof he is entitled to proceed against the property given to the Court by way of security. He has undoubtedly no present interest which is affected by the sale.

6. As I read this judgment I find that the principle is this: When an attachment is affected in execution of a decree, that attachment is effected with the immediate object of getting satisfaction, that is to say, the attaching creditor is a person pecuniarily interested in the attached property which is to be the means for getting the money which the decree directed the judgment--debtor to pay. Whereas in a case of attachment before judgment he has not got any existing pecuniary interest, the object of that attachment being merely to prevent the judgment--debtor from harassing him further if, and only if, he obtains a decree. On this principle I hold, apart from the question that the decision in the case of Jogendra Nath Chatterji v. Monmatha Nath Ghose (1913) 15 1 C 658 is binding on me, that a correct view has been taken of the legal position of the petitioners before me, by the Courts below. I therefore, discharge this Rule, but in the circumstances, I make no order for costs.


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