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Bhupendra Nath Kumar and ors. Vs. Joonus Haji Abdullah - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.812
AppellantBhupendra Nath Kumar and ors.
RespondentJoonus Haji Abdullah
Cases ReferredNajimunnessa Bibi v. Nacharuddin Sardar
Excerpt:
civil procedure code (act v of 1908), sections 115, 64, order xxi, rule 63 - execution proceedings--parties defining their respective rights-remedy of aggrieved, party is to file suit under order xxi, rule 63--interference under section 115--purchase void by reason of being contrary to attachment--attachment ceasing--purchase, whether revives or still remains void. - .....circumstances. the predecessor of the present petitioners obtained a money decree against the opposite party no. 2 for about rs. 600. the opposite party no. 1 obtained another money decree against the same judgment-debtor for about rs. 3,000. the petitioners put their decree into execution in execution case no. 268 of 1930 and attached certain properties including those now in suit on june 4, 1930. the opposite party no. 1 took out his decree into execution in execution case no. 228 of 1930 and attached properties now in dispute on september 18, 1930. on october 17, 1930, the judgment-debtor opposite party no. 1 made a private transfer of the properties in favour of the petitioners for about rs. 4,500 and out of this money rs. 3,400 was paid to a mortgagee who had taken the mortgage.....
Judgment:

1. This is an application for the revision of an order dated September 24, 1931, made by the learned Judge below dismissing a claim in execution proceedings under the following circumstances. The predecessor of the present petitioners obtained a money decree against the opposite party No. 2 for about Rs. 600. The opposite party No. 1 obtained another money decree against the same judgment-debtor for about Rs. 3,000. The petitioners put their decree into execution in Execution Case No. 268 of 1930 and attached certain properties including those now in suit on June 4, 1930. The opposite party No. 1 took out his decree into execution in Execution Case No. 228 of 1930 and attached properties now in dispute on September 18, 1930. On October 17, 1930, the judgment-debtor opposite party No. 1 made a private transfer of the properties in favour of the petitioners for about Rs. 4,500 and out of this money Rs. 3,400 was paid to a mortgagee who had taken the mortgage long before the attachment. Rupees 600 was credited to the petitioners' decree and the balance was paid in cash. Then the petitioners brought Title Suit No. 40 of 1931 for a declaration that the decree obtained by the opposite party No. 1 was collusive and the attachment was a bogus one. The opposite party No. 2 was t made a party to this suit. The suit was subsequently referred to arbitration and on March 29, 1934, a decree was made in terms of the award as follows:

(a) The attachment effected at the instance of the opposite party No. 1 on September 18, 1930, in Execution Case No. 228 of 1930 was declared to be valid and effective and the petitioners purchase on October 17, 1930, was subject to that attachment.

(b) The mortgage mentioned aforesaid executed by the judgment-debtor No. 2 was to be valid and the petitioners having been subrogated to it were to get a mortgage decree and the attachment of the opposite party No. 1 was to be subject to the said mortgage.

(c) The amount clue of the petitioners on account of the mortgage was fixed and made payable by a certain date failing which the mortgaged property would be sold.

(d) The petitioners' Execution Case No. 261 of 1930 was restored to file. Subsequently it appears the opposite party No. 1 proceeded with the Execution Case No. 228 of 1930 but on May 25, 1934, he having taken no steps, it was dismissed for default. On the following day, however, he started a fresh execution case being Case No. 93 of 1934 and again attached the said property. Thereupon the petitioners filed a claim under Order XXI, Rule 58 of the Code of Civil Procedure for a declaration that their position remained unaffected by the subsequent attachment. The learned Judge below held that the Execution Case No. 228 of 1930 having been dismissed on May 25, 1934, the attachment ceased thereby. But he also held that, both according to the decree in terms of the award and according to the provisions of Section 64 of the Code of Civil Procedure, the transfer made in favour of the petitioners on October 17, 1930, was void as against the decree-holder opposite party No. 1 and in that view he dismissed to petition. Against that judgment we are asked to interfere under the provisions of Section 115 of the Code of Civil Procedure.

2. It is contended for the opposite party that an effective answer to this petition is the fact that according to the decree following upon the award made on March 29, 1934, the petitioners have been subrogated to the position of the mortgagee and the attachment of the opposite party No. 1 was made Subject to the mortgage decree. In any case the parties have chosen to define their respective rights and it was open to the aggrieved party to file a suit under Order XXI, Rule 63 of the Code of Civil Procedure. Consequently it would not be proper for this Court to interfere under Section 115 of the Code of Civil Procedure. We think that this contention is right and it should be given effect to.

3. On the question of law it is contended that under the provisions of Section 64 of the Cede of Civil Procedure, the attachment made in Execution Case No. 228 of 1930 having ceased, the subsequent attachment made in Execution Case No. 93 of 1934 was not in continuation of the previous attachment and therefore it cannot be said that the transfer which might have been void in the previous attachment is void in the subsequent attachment. In reply to this it was pointed out that the concluding words of Section 61 'as against all claims enforcible under the attachment' were introduced in the Code of 1877 by Section 276 following upon the Privy Council case of Anund Loll Doss v. Jullodhur Shaw 14 M.I.A. 543 : 10 B.L.R. 134 : 17 W.R. 313 : 4 Suther 559, which construed the corresponding Section 240 of the old Code of 1859 to mean that a private alienation was only void as against the attaching creditor. It is noteworthy that the word is 'enforceable' and not 'enforced', as was pointed out by Seshagiri J., in the case of Annamalai Chettiar v. Palamalai Pilial 41 M. 265 at p. 278 : 43 Ind. Cas. 539 : A.I.R. 1918 Mad. 127 : 22 M.L.T. 461 : 33 M.L.J. 707 : (1917) M.W.N. 882 : 7 L.W. 298(F.B.). In the present case the claimant is the transferee during attachment. The claim referred to in Section 64 is the claim of the decree-holder enforceable under the attachment. It cannot be said that the claim of the decree-holder who is opposite party No. 1 was not enforceable under the attachment pending which the present petitioners made their purchase. It stands to reason that if the purchase was void by reason of its being made contrary to the attachment, it does not revive by reason of the attachment ceasing. Authority for this is afforded by the case of Ram Churn Lall v. Jhubbe Sahoo 14 W.R. 25, where it is laid down under similar circumstances that an alienation which is null and void because made during an attachment which was subsisting cannot be validated by the removal of the attachment. Dr. Basak appearing for the petitioners has relied on the case of Gobind Singh v. Zalim Singh 6 A. 33 : A.W.N. 1889, 183 and another Allahabad case namely the case of Nageshwar Tewari v. Rupnarain Sukul 97 Ind. Cas. 547, and the case of Bhagwan Lal v. Rajendra Prosad Sahi A.I.R. 1923 Pat. 564 : 77 Ind. Cas. 1 : 4 P.L.T. 409. He has also referred to the case of Najimunnessa Bibi v. Nacharuddin Sardar : AIR1924Cal744 . So far as the last mentioned case is concerned, it is only relevant for the purpose of showing that an attachment may cease and a subsequent attachment may not be in continuation of it. That is in accordance with Order XXI, Rule 57, and does not carry us any further. As regards the other cases we must disagree in so far as they support the proposition that, where an attachment has been made, a private transfer contrary to such attachment may not be void as against a claim enforceable under the attachment on the ground that the attachment has ceased. But it may be pointed out that in all those cases the circumstances were somewhat different. In the two Allahabad cases the decree holder had made an auction-purchase at a subsequent attachment and he then brought a suit to declare a transfer made during a previous attachment void. In the Patna case a mortgagee, pending attachment, brought the suit for a declaration that an auction-purchase made by the decree-holder at a subsequent attachment was made subject to his mortgage. In any case we are of opinion that the learned Judge has taken the correct view.

4. The Rule, therefore, stands discharged with costs - hearing fee is assessed at three gold mohurs.


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