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Tarak Nath Mukherjee Vs. Sanat Kumar Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal494,122Ind.Cas.637
AppellantTarak Nath Mukherjee
RespondentSanat Kumar Mukherjee and ors.
Cases ReferredMadan Mohan v. Rebati Mohan
Excerpt:
- .....to complain about, for as far as i can see, it cannot affect his right to bring the property to sale in execution of his decree. the learned judge further on states that:it seems to me that if we are to hold that a plaintiff creditor can ignore the obligation incurred by a debtor we should use the provision of section 64 for a purpose which was not intended, that provision being for the protection of the creditor against transaction subsequent to the attachment.12. the transactions referred to are transfers or delivery of the property and an agreement to sell is neither. but as it creates no interest or charge in the property there is nothing to protect the the judgment-creditor against. in my opinion he is not affected by anything that creates no charge or interest in the property......
Judgment:

Cuming, J.

1. The facts of the case out of which these appeals arise are these: One Himadri had a certain share in a certain taluk. He was involved in debt and there were a number of decrees out against him. On 14th June 1921 in execution of a money decree his share in the taluk was sold. He then applied on 14th July 1921 to have the sale set aside on depositing the decretal amount and this was allowed on 18th July 1921. It will appear that the money to do this was supplied by the plaintiff in the present suit, Babu Tarak Nath Mukherji. On 8th July Himadri had entered into an agreement to sell to Mukherji his interest in the taluk and Mukherji paid him in advance some Rs. 26,000 odd of the purchase money and it was this money which was used to satisfy the decretal amount of the decree I have already referred to.

2. One Kali Nath Bose had meanwhile obtained another decree against Himadri and in execution of the decree attached the same property on 25th September 1921.

3. On 16th September 1921 two persons Niladri and Sanat had instituted money suits against Himadri and attached the property before judgment in one suit on 10th August 1921 and in the other on 3rd September 1921. On 29th November 1921 the agreement for sale I have already referred was completed and the property sold to Mukherji. The balance of the purchase money Rs. 5,386 odd was paid some time before this date. Mukherji then put in objection to the three attachments under Order 21, Rule 58 but was unsucessful. Mukherji deposited the decretal amount in Kali Nath Bose's case. He has brought three suits. One against Kali Nath Bose asking for a declaration that the property was not liable to be sold in execution of Kali Nath's decree and asking for a refund of the purchase money.

4. In the other two suits he asked for a declaration that the property was not liable to be sold in execution of the decree.

5. In Kali Nath Bose's case the Court held that the property was liable for the decretal debt. In the other two cases it was held that the property was liable to be sold in execution of the decrees which had since been obtained subject to a mortgage charge of one Raja Sreenath Roy and subject to the right of the plaintiff to have his claim for specific performance of contract enforced against the auction-purchaser. There were appeals and cross appeals to the District Court. That Court passed the following decree:

that the title of the plaintiff to the propsrty would be confirmed but that he would pay certain sums to the defendants which would be oharge on the property.

6. A like cross-appeal in suit No. 71 was dismissed. The plaintiff has appealed and there are also cross objections by the defendants. The plaintiff's case briefly is that the property is not in any way liable for the payment of the defendant's decrees. The question therefore to be decided in these appeals is a simple one, viz., whether the attachment which took place before the sale or the sale itself shall prevail. So far as this point is concerned Section 64, Civil P.C., supplies a complete answer, for any private transfer or delivery of the property attached subsequent to the attachment is void against all claims enforceable under the attachment. Admittedly the sale was completed on 29th November after the attachment. The section makes no distinction between attachment before or after judgment. The plaintiff appellant however would rely on the agreement of sale of 8th July and would seem to contend if I understand his argument rightly that this agreement to sale would create some obligation on the property which obligation if I understand him rightly would prevail over the attachment.

7. The obligation presumably referred to here must be such an obligation as is referred to in Section 40, T.P. Act, an obligation which does not amount to an interest in the property or an easement. Section 54, T.P. Act makes it quite clear that a contract for sale does not create any interest or charge on the property.

8. Therefore at the time of the attachments the appellants had no interest in or any charge on the property which was attached. He had at the most an obligation as contemplated under Section 40, T.P. Act which might allow him go to the transferee and compel the transferee to sell to him the property.

9. But it is equally clear that as a result of the obligation no charge or interest has been created by such obligation and as far as I can understand nothing can prevail against the attachment except some prior interest or charge. It might be that as a result of the obligation or agreement, Mukherjee might be able to go to the person who had purchased the property at an execution sale and ask that he should perform the contract for sale.

10. The appellant has relied in support of his contention on the case of Madan Mohan v. Rebati Mohan [1916] 23 C.L.J. 115.

11. If I understand that decision rightly it did not decide or lay down any principle of law but was decided on some principle of natural justice, for, the learned Judge (Woodroffe, J.) concludes his judgment by saying that the natural justice of the case demands that the defendant's purchase should prevail. The facts of that case were that the plaintiff had attached certain properties before judgment on 6th November 1895 and purchased them at an execution sale on 19th August 1897. Before the sale on 28th May 1897 the defendant purchased the property by a kabala in pursuance of a contract executed before the attachment. In deciding this case Woodroffe, J., no doubt discusses Section 64, Civil P.C., and also Order 38, Rule 10 and remarks that the creditor can only attach the right, title and interest of his debtor at the date of attachment and cannot complain if his debtor has created an obligation against him prior to the attachment. Perhaps he cannot complain and as far as I can see he would have no grounds of complaint, for, an obligation does not as far as I can see affect the right, title and interest of the judgment-creditor at the time of the attachment. It creates no charge or interest and the very use of the expression obligation shows that the learned Judge realized that it was not a right. Neither would it be title or interest. Obviously therefore the creditor would have nothing to complain about, for as far as I can see, it cannot affect his right to bring the property to sale in execution of his decree. The learned Judge further on states that:

It seems to me that if we are to hold that a plaintiff creditor can ignore the obligation incurred by a debtor we should use the provision of Section 64 for a purpose which was not intended, that provision being for the protection of the creditor against transaction subsequent to the attachment.

12. The transactions referred to are transfers or delivery of the property and an agreement to sell is neither. But as it creates no interest or charge in the property there is nothing to protect the the judgment-creditor against. In my opinion he is not affected by anything that creates no charge or interest in the property. But after all the decision of that case depends as far as I can see on no principle of law but on some principle of natural justice and I find some difficulty in applying to the present case some principle of natural justice which was applicable obviously to the particular facts of that particular case.

13. I am therefore of opinion that the attachment must prevail over the subsequent sale to the plaintiff and that the property is liable for the satisfaction of the three decrees already referred for the execution of which the property had been attached both before and after judgment. The plaintiff-appellant states that if this be our decision he does not quarrel with the form of the lower Court's order and will not contest it.

14. The cross-appeals in the event of the decision being against the plaintiff-appellant as it is, are not pressed and are dismissed. The result is that the appeals fail and are dismissed with costs.

Pearson, J.

15. I only desire to add that I am unable to take the same view of the basis of the decision in Madan Mohan v. Rebati Mohan [1916] 23 C.L.J. as Cuming, J. I think that decision was given on a consideration of the scope and effect of Section 64, Civil P.C., coupled with Order 38, Rule 10 as affecting the circumstances of that case, and that it is not to be disposed of saying that it was rested not upon principles of law but upon natural justice only. For the purpose of the present case however the only question is whether in the circumstances the attachment held good to the extent of the then unpaid balance of the purchase money under the prior agreement of July. At the time of the attachment there is admittedly no question of any transfer of interest in the property, which, therefore, remained in the vendor. Neither the contract for sale nor the attachment created any such interest. Then as regards the argument that the attachment cannot interfere with the pre-existing rights under Order 38, Rule 10, the question arises as to what those rights actually were. The vendor's right was to receive the balance of the purchase money, but only upon execution of the conveyance operating as a transfer and from that he was prohibited in terms of the attachment order: see Order 21, Rule 51. In my view when the attachment was made it was an attachment affecting the right, title and interest of the debtor in the property at any rate to the extent of any balance then receivable under the agreement: the debtor's existing interest in the property became thereby affected to that extent and the creditor became entitled to have it applied, in the events which happened towards payment of his debt. That, I think, is the fair effect of Section 64, Civil P.C. and Order 38, Rule 10 in the circumstances of the present case.

16. I would therefore agree with the order proposed to be made in this appeal.


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