R.C. Mitter, J.
1. The Secretary of State for India in Council, who is opposite party 2 in this rule, obtained a decree for rent against opposite parties 3 and 4, Hatu Dutta and Sudhangsu Bhusan Dutt. In execution of his decree the defaulting holding was sold and purchased by the petitioner, Bulanda Bashini Dasi, on 27th May 1935. It is this sale that the opposite party 1, Pran Gobinda Dhar, wanted to set aside by making a deposit under the provisions of Sub-section 1, Section 174, Tenancy Act. His application for setting aside the said sale was refused by the 1st Court but has been allowed by the lower appellate Court, and the said sale has been set aside. The question raised in this rule is whether the Court had jurisdiction to entertain the said application of opposite party 1. This question depends upon the question as to whether he is a person whose interest has been affected by the rent sale.
2. The answer to this question depends upon the following facts which are not disputed by any of the parties to this rule: Opposite party 1 had obtained a money decree against opposite parties 3 and 4. He applied for execution of his decree. An order for attachment of the holding in question was passed in the proceedings for execution of his decree on 23rd May 1935, that is four days before the rent sale, but the property was actually attached after it, that is on 21st June 1935. He made the application under Section 174 (1) and made the deposit as required by that section on 22nd June 1935. It is now settled law, so far as this Court is concerned, that an attaching creditor, who has attached in execution of his decree, has the right to apply to set aside a sale under Order 21, Rule 90, of the Code, which contains the same words namely 'whose interests are affected by the sale' as occur in Section 174 (1), Tenancy Act. But it is said by the learned advocate appearing for the petitioner that the fact of attachment alone in execution of a decree gives him the locus standi to apply for setting aside the sale under the provisions of Order 21, Rule 90, of the Code, or Section 174, Tenancy Act, according as the sale is under the Code or the Tenancy Act. It is necessary to examine in this case the said contention and the precise principle.
3. In my judgment a person who has a proprietary or possessory interest existing at the date of the challenged sale, which would be affected by it, has the right to apply to set aside the sale under Order 21, Rule 90 of the Code, or Section 174, Tenancy Act. That is the simplest case. But a creditor who has attached the property in execution of his decree for money is a person who has got no proprietary or possessory interest therein. But he has a pecuniary interest therein, because it is the property to which he looked for the satisfaction of his decree. He has the right to its preservation in the same state and can sue if a third party by wrongful acts destroys it or diminishes its value, Sankaralinga v. Kandaswami (1907) 30 Mad 413; for such wrongful acts would ultimately affect the price that the property would fetch at the Court sale, the price which would have been the means of satisfaction of his decree. If it is sold in execution of another's decree, he, having the right of rateable distribution is entitled to see that it has been sold not at an inadequate price by an irregular or fraudulent sale, for, more the price fetched the more would be his share in the rateable distribution. If he has not the right to claim rateable distribution, the surplus sale proceeds, after satisfying the claim of the decree-holder at whose instance the property was sold, would be available to him, and the more the price fetched the more would be the surplus. He has therefore a pecuniary interest affected by an irregular or fraudulent sale which had fetched an inadequate price by reason of the irregularity or fraud. It is on this principle and this principle only, namely, that his pecuniary interests are affected, that his right to apply for setting aside the sale, is in my judgment, based on Venkatesha Kamathi v. Villa Bhakta 1933 Mad 455, and I consider that this is the only principle on which his right so to apply has been supported in Dhirendra Nath Roy v. Kamini Kumar Pal 1924 Cal 786. Page, J. expressly puts the case on the said principle alone. Suhrawardy, J. also states the principle in that way at p. 498 of the report. When he says that an attaching creditor has an interest in the sale of the property or in the property itself, he means that he has a pecuniary interest therein, because he looked to the property for the satisfaction of his money decree, which was sold at the instance of another creditor of the same judgment-debtor. That is also the basic principle underlying the decision in Sankaralinga v. Kandaswami (1907) 30 Mad 413 as I have indicated above, on which Suhrawardy, J. relies for his support.
4. Most of the cases where the question has come up are cases where the person who had applied for setting aside the sale had actually attached in execution the property before the sale and consequently in these cases the observations are to the effect that the attachment gave a pecuniary interest in the property to the person seeking to set aside the sale. The question in this case is whether the fact of attachment in execution of a decree only, gives him a pecuniary interest. In my judgment the fact of attachment is one of the modes by which pecuniary interest is acquired in the property, but only one of many modes in which such an interest can be acquired. A mortgagee of a nontransferable occupancy holding who has recovered a decree, or even one who has not recovered a decree, can apply to set aside a rent sale held under Ch. 14, Tenancy Act. It may be said that the holding being non-transferable, he had not acquired any proprietary interest in the same against the landlord who has obtained the rent decree, but surely his pecuniary interest is affected by the rent sale. It is on this principle that the Patna High Court has supported his right to apply for setting aside a rent sale: Lakhan Choudhury v. Bacha Lal Singh 1930 Pat 451. In such cases there is no attachment at all. In my judgment the correct principle for determining whether the applicant for setting aside the sale had acquired before the challenged sale, a pecuniary interest in the property is to be gathered from the following underlined passage in the judgment of Mookherjee, J. in Jogendra Nath Chatterjee v. Monmatha Nath Ghosh (1913) 17 C W N 80 where he was considering the difference between an attachment before judgment and attachment in execution of a decree:
An attachment after decree on the other hand is an attachment made for the immediate purpose of carrying the decree in execution, and it presupposes an application on the part of the decree-holder to have his decree executed.
5. In that case the question was whether a person who had attached the property before judgment, but had not got a decree, could apply to set aside a sale, and it was answered in the negative. For drawing a contrast the case of an attachment in execution of a decree was spoken of, but in my judgment a decree-holder acquires a pecuniary interest in the property, the sale of which at the instance of another decree-holder he challenges, as soon as he has done a formal act, an act in Court, which indicates unequivocably that he wants that property for the satisfaction of his decree. The act must be specific, in relation to that particular property and must not remotely but proximately or immediately connect his intention to realize his dues out of that particular property. On this principle a person who has attached before judgment, but who has at the date of the challenged sale, got no decree, would not be entitled to apply for setting aside the sale. A person who has obtained a decree for money, but has not applied for execution, would also have not the right to apply on this principle, as he has not taken any action in Court to indicate that he looked to that particular property sold for satisfaction. The cases cited by the petitioner, namely, Sulemanji v. Pragji Kala 1917 Sind 33 and Rustomji v. Perozshaw 1925 Sind 101, fall within this type. A person who has obtained a decree for money and has only applied for execution but has not applied for and obtained an order for attachment of the particular property may possibly be excluded, but when a person has gone further and has taken effective and definite steps for proceeding against the particular property, which steps in normal course would lead to the sale of the property in question for satisfaction of his decree, I think he would have the right to apply for setting aside the sale. Here such definite steps had been taken by opposite party 1; he asked for and obtained an order for attachment of the holding sold at the rent sale brought about at the instance of the landlord, the Secretary of State for India in Council, before the rent sale. He had unequivocably manifested his intention to look to the said holding as a means of satisfying his decree and had done an act which cannot be said to connect remotely his intention to realize his decretal dues with the said holding. He had obtained an order from the Court which in its normal course, in the course of ministerial acts and proceedings only and without a further judicial order, would, have placed the suit property in custodia legis as a preliminary, necessary and immediate step for enabling the satisfaction of his decree out of the same.
6. If on this principle I hold that opposite party 1 had locus standi to apply under Section 174 (1), Tenancy Act, though the actual attachment was effected after the rent sale, I do not consider that the case in Muttiah Chetti v. Palaniappa Chetti 1928 P C 139 or the cases in Sinnappan v. Arunachalam Pillai 1920 Mad 804 and Nabadwip Chandra Das v. Lake Nath Roy 1933 Cal 212 have any bearing upon the point that I have to decide. Those cases lay down that there is a distinction between an order for attachment and the actual attachment, and where the legislature has used the word attachment, as for instance in Article 11, Schedule 1, Lim. Act, and Sec. 64 of the Code, it means attachment and not the order in consequence of which the attachment is afterwards made, with the necessary corollary that the result of attachment indicated by the legislature would follow only when there is the attachment and not before. I accordingly hold that the right order has been passed by the Court of appeal below, and this rule must be discharged with costs to opposite party 1, hearing-fee 1 gold mohur.