1. This Rule, No. 711 of 1933, was issued on the opposite party to show cause why an order of the Subordinate Judge, First Court, Backergunj passed in Mortgage Suit No. 163 of 1931 should not be set aside and a similar Rule No. 712 was issued in connexion with Execution Cases Nos 13 and 16 of 1931 pending in the same Court. The salient facts of the cases are as follows: Opposite party 8 sued opposite parties 1 and 7 on a mortgage of 56 items of property and obtained a decree for sale. She subsequently put her decree into execution and at a sale held in execution of that decree purchased the properties on 19th February 1930. In order to have the sale set aside opposite parties 2 to? deposited in Court in March 1930 sums of Rs. 500 and Rs. 11,740 under Order 21,Rule 89, Civil P. C. The sale was set aside on 26th May 1930. On appeal this order was reversed and the sale was confirmed on 14th April 1932, Meantime on 18th March 1930 opposite parties 1 to 5 and 7 had mortgaged the 56 items of property together with another 51 items of property to opposite parties 9 and 10 and a sum of Rs. 12,000 was advanced to the said opposite par-ties on the mortgage out of which amount Rs. 11,240 was deposited in Court by the mortgagors. Subsequently, opposite parties 9 and 10 brought a suit on this mortgage on 26th June 1931 and this deposit of Rs. 11,240 wa3 attached before judgment in that suit.
2. Thereafter the petitioner in this case withdrew Rs. 3,749 from the deposit in execution of a decree obtained by him against the opposite parties having previously attached this deposit of Rupees 11,210. Opposite parties 9 and 10 having obtained two decrees in the suits brought by them, put up the 51 items of properties to sale in execution of the decrees obtained by them and it was ordered by the Court below that if the decretal amount be not satisfied out of the sale proceeds of the properties, the balance, if any would be recovered out of the attached money in deposit. This order was passed on 26th November 1932. Previous to the passing of this order the petitioner had already withdrawn Rs. 3,749 from the deposit. The order complained of was passed on 6th March 1933 directing the petitioner to refund this money. The order was that the plaintiff's prayer for refund of the money by the petitioner would be rejected on the petitioner undertaking within ten days of the sale to refund the same and that if this undertaking be not given within the time allowed he would be liable to deposit the amount at once. In the Court below the learned Subordinate Judge was of opinion that the opposite parties 9 and 10 were entitled to the benefit of Section 68, T. P. Act, as the 56 items of property must be deemed to have been destroyed by the sale in execution of a previous mortgage and he therefore held that opposite parties 9 and 10 were entitled to hold the compensation money as his substituted security. He also held that the decree under which the decree-holder had attached this money had not the force of a rent decree and so the attachment before judgment obtained in the mortgage suit No. 163 of 1931 must prevail over the attachment under execution, He therefore passed the order referred to for refund and also ordered that
the decree-holder's prayer for withdrawing his dues under the present decree cannot be granted until the sale is held in execution of the final decree in suit No. 163 of 1981.
3. It is admitted that the money which was deposited cannot be regarded as a substituted security. Before opposite parties 9 and 10 had obtained their decree these properties had already been sold in execution of another decree. Under Order 38, Rule 10, Civil P. C , attachment before judgment shall not bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. The order therefore to the effect that attachment before judgment shall prevail over attachment in execution of the decree obtained by the petitioner is contrary to law. The effect of attachment before judgment is to prevent alienation of the property by the judgment-debtor and does not confer any priority of title on the attaching creditor. This view is expressed in the case of Bisheswar Das v. Ambika Prosad AIR 1915 All 275. Under Order 34, Rule 6 if the proceeds of a sale held in execution of a decree are found insufficient to pay the amount due to the plaintiff the Court may, on application by the plaintiff if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. In the present case before the property could be disposed of in execution of the decree it would be necessary under Order 34, Rule 6 that the 51 items of property which were ordered to be sold in execution of the decree should be sold first and then if any balance is left unpaid it would be necessary for the opposite party to obtain an order under Order 34, Rule 6 for recovery of the balance from the depositor otherwise. The Rules are therefore made absolute. The order directing refund of the amount already withdrawn by the petitioner in execution of the decree as also the order rejecting the decree-holder's prayer for withdrawing his dues under the decree are set aside and the learned Subordinate Judge is directed to pass proper orders according to law in the proceedings in connexion with which Rule No. 712 was issued. The petitioner will get his costs in both the rules the hearing-fee being assessed at one gold mohur in each case.
4. I agree.