S.K. Ghose, J.
1. This is an application under Section 115 of the Code of Civil Procedure and Section 107 of the Government of India Act and it is directed against a judgment dated May 29, 1934, of the learned Subordinate Judge of Hooghly allowing a claim in Rent Execution No. 1 of 1934 in his Court. The relevant facts are these: The petitioners who are executors to an estate obtained a rent decree against opposite party No. 2 and on March 10, 1933, they put their decree into execution in Rent Execution Case No. 8 of 1933. One Monomoy Banerjee who had obtained a money decree against the same judgment-debtor put his decree into execution in Rent Execution Case No. 6 of 1933 by attaching certain properties of the judgment-debtor including a Putni Taluq known as Sankarbati. On August 28, 1933, the petitioners applied for rateable distribution in Rent Execution Case No. 6 aforesaid. Thereupon the following order was made in Rent Execution Case No.6.
Order No. 13: August 28, 1933. An application for rateable distribution has been made by the decree-holders of Rent Execution Cass No. 8 of 1933 in this Court in reference to the money to be realised in this case.
2. The following order was recorded in Rent Execution Case No. 8 of 1933.
Order No. 14. August 28, 1933. Read decree-holder's application of to-day. Put up on August 31, 1933, with the record of Execution Case No. 6 of 1933.
3. On August 31, the following order was recorded in Rent Execution Case No. 6.
Order No. 14 August 31, 1933, to 12--9 at 12 noon for sale on judgment debtor's application. Judgment-debtor's attention is drawn to Order No. 13 in Rent Execution Case No.8 of 1933.
4. The following order was recorded in Rent Execution Case No. 8.
Order No. 15. August 31, 1933. Put up on September 12, 1933, with Rent Execution Case No. 6.
5. Then both the cases were fixed for September 12, but it appears that on September 7, the decree-holders in Rent Execution No.6 got their execution case dismissed by the following order:
Order No. 15....September 7, 1933, decree-holder's Pleader states that decree-holder cannot proceed further with this execution case. That case is dismissed on part satisfaction.
6. On the same date the Court recorded the following order in Rent Execution Case No. 8.
Order No. 16--September 7, 1933. Decree-holder to note that Rent Execution Case No. 6 of 1933 has been dismissed to-day for want of prosecution.
7. On September 12, the Court recorded the following order in Rent Execution Case No. 6.
Already disposed of on September 7, 1933.
8. Subsequently on September 16, the petitioners' Execution Case No. 8 was dismissed on part satisfaction. On the same date a new Execution Case No. 15 of 1933, was registered on an application by the petitioners for recovery of the balance of the decree-holder's amount. In this execution case petitioners attached, among other properties of the judgment-debtor, the said Patni Taluq Sankarbati. Thereupon on February 5, 1934, the opposite party No. 1 Debendra Nath Dutt preferred a claim to the said property under Order XXI, Rule 58, of the Code of Civil Procedure alleging that he had purchased the property from the judgment-debtor by a registered conveyance dated September 7, 1933. On May 29, 1934, the learned Subordinate Judge allowed the claim and directed the release of the said Patni Taluq from the attachment. Against that order the present application has been filed.
9. It is contended on behalf of the petitioners that under the provisions of Section 64 of the Code of Civil Procedure, the private alienation in favour of opposite party No. 1 must be held to be void, inasmuch as the petitioners having applied for rateable distribution of the assets had a claim enforceable under the attachment. It is pointed out on behalf of the opposite party that as the petitioners themselves had not attached the property and, the attachment had come to an end on September 7, 1933, the petitioner had no enforceable claim under the said attachment. A. direct decision on this point is afforded by the Full Bench case of Annamalai Chettiar v. Palamalai Pillai 41 M. 265 : Ind. Cas. 539 : 2 M.L.T. 461 : 33 M.L.J. 707 : (1917) M.W.N. 882 : 7 L.W. 298(F.B.), which is against the petitioners. Mr. Biswas for the petitioners, however, has contended that this decision is wrong inasmuch as it is based on the Privy Council case of Mina Kumari Bibi v. Bijoy Singh Dudhuria 44 C. 662 : 40 Ind. Cas. 242 : 1 P.L.W. 425 : 21 C.W.N. 585 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 41 I.A. 72(P.C.), which, was a decision under the old Code when the Explanation lo Section 64 was not inexistence. Before dealing with this contention it may be just as well to look to the terms of Section 64 as it now stands, and it may be pointed out at once that one of the relevant conditions is that a private transfer in order to be void must be contrary to the attachment. In the present case the learned Subordinate Judge has come to the following findings of fact. First, the decree-holders in Rent Execution Case No. 8, who are they present petitioners, had not attached the properties the execution of their own decree. On the other hand, the kobala executed by the claimant opposite party No. 1 was a genuine transaction and part of the consideration was paid towards the satisfaction of the decree. The learned Subordinate Judge has definitely found that
for that reason the execution case was not proceeded with further and it was allowed to be dismissed on part satisfaction on account of the previous payments made by the judgment-debtor himself.
10. These findings of fact cannot be questioned in this Rule and in view of these findings it cannot be said that the transfer was contrary to the attachment.
11. The second point is that a claim for rate able distribution of asses, in order to be enforceable, must satisfy the conditions laid down in Section 73 of the Code. In the Explanation to Section 64 the expression 'claim for the rate able distribution of assets' must be taken to mean claims for the rateable distribution of assets which are enforceable, and under the provisions of Section 73 no such claim is enforceable until assets are received by the Court. Without assets what the Court has before it is merely an application for rateable distribution. In the present case the petitioners filed an application for rateable distribution and that was being put up before the Court from time to time. No order could be passed thereon and, in fact, the petitioners had no claim to enforce for the simple reason that there were no assets. Turning to the relevant cases on this point it will be sufficient to refer first to the case of Sorabji Edulji Warden v. Govind Ramji 16 B. 91, which lays down the proposition under the old Code that all persons who would been titled to rateable distribution would have the right to impeach a private alienation, if the attachment under which they made the claim was subsisting. This was the view taken without the explanation which was subsequently added in the new Code and, as it is pointed out by the Full Bench in Annamalai Chettyar v. Palamalai Pillai 41 M. 265 : Ind. Cas. 539 : 2 M.L.T. 461 : 33 M.L.J. 707 : (1917) M.W.N. 882 : 7 L.W. 298(F.B.), the explanation merely gives effect to the view that was taken in the Bombay case, differing from the view that was taken in the case of Manohar Das v. Ram Autar Panda 25 A. 431 : A.W.N. 1903, 92, which was to the effect that it was the attaching decree-holder alone who could avoid a private alienation. Now Mina Kumari s case (2) assumes that the view taken in Sorabji Edulji Warden v. Govind Ramji 16 B. 91, is correct and on that assumption it points out that, in order that the claims of non-attaching decree-holders for rateable distribution might be enforceable, it was necessary to bring Section 295 (now Section 73) into play, but that certain conditions should be fulfilled and one of them was that there should be assets in the hands of the Court 1 fail to see how this decision can be affected by the fact that the Explanation to Section 61 was not there in existence. Bake-well J., who was one of the referring Judges in the Madras, case took the view that the Privy Council case in the decision under the old Code was not authority on the question which was raised under the new Code with the explanation added. But the learned Judges who heard the reference all took the view that the question was governed. by the decision in Mina Kumari's case 44 C. 662 : 40 Ind. Cas. 242 : 1 P.L.W. 425 : 21 C.W.N. 585 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 41 I.A. 72(P.C.), on the principle that a claim in order; to been forceable must comply with the conditions laid down in Section 73 and that certainly is the import of the decision in Mina Kumari's case 44 C. 662 : 40 Ind. Cas. 242 : 1 P.L.W. 425 : 21 C.W.N. 585 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 41 I.A. 72(P.C.). In that view we see no; reason to differ from the decision of the Full Bench in the Madras case. In Barendra Nath v. Marten & Co. 33 C.L.J. 7 at p. 16 : 62 Ind. Cas. 167(see page 16) the question was raised, but not decided. In the present case it must be held that the private alienation was not contrary to the attachment and that the petitioners' claim could not have been enforceable under the attachment. The decision of the learned Subordinate Judge is, therefore, correct and the Rule must stand discharged with costs--hearing fee is assessed at three gold mohurs.
Mc Nair, J.
12. I agree.