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Kali Kumar Saha Vs. Kali Prasanna Majumdar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.492
AppellantKali Kumar Saha
RespondentKali Prasanna Majumdar and ors.
Cases ReferredSorabji Edulji Warden v. Govind Ramji
Excerpt:
civil procedure code (act v of 1908), sections 64 and 73, order xxxviii, rule 11, order xxi, rule 63--transfer of property under attachment, how far inoperative--decree-holder, right of, to set aside transfer by judgment-debtor. - .....provisions of rule 63 of order xxi of the code of civil procedure. the plaintiff had obtained a money-decree against defendant no. 2 and one other and proceeded to attach a money-decree that defendant no. 2 had obtained against the defendant no. 3. the decree obtained by defendant no. 2 against defendant no. 3 had already been under attachment by two other decree-holders before the date of the plaintiff's money-decree. it appears that between the date of the attachment of the decree by the other decree-holders of the defendant no. 2 and the date on which the plaintiff obtained his decree, the defendant no. 2 had transferred his decree against defendant no. 3 to defendant no. 1, who has been the contesting defendant in the suit. on the plaintiff applying for attachment of the decree an.....
Judgment:

1. This appeal arises out of a suit instituted by the plaintiff in persuance of the provisions of Rule 63 of Order XXI of the Code of Civil Procedure. The plaintiff had obtained a money-decree against defendant No. 2 and one other and proceeded to attach a money-decree that defendant No. 2 had obtained against the defendant No. 3. The decree obtained by defendant No. 2 against defendant No. 3 had already been under attachment by two other decree-holders before the date of the plaintiff's money-decree. It appears that between the date of the attachment of the decree by the other decree-holders of the defendant No. 2 and the date on which the plaintiff obtained his decree, the defendant No. 2 had transferred his decree against defendant No. 3 to defendant No. 1, who has been the contesting defendant in the suit. On the plaintiff applying for attachment of the decree an objection was raised by defendant No. 1 on the ground that there had been a valid transfer in his favour by defendant No. 2. The objection of the defendant No. 1 having been allowed the plaintiff was obliged to institute this suit. The relief sought in the plaint was that a declaration might be made that the plaintiff was entitled to attach the decree in question and that the alienation made by the defendant No. 2 in favour of defendant No. 1 was inoperative as against the plaintiff. The Munsif, who tried the case, dismissed the suit and in appeal the plaintiff was equally unsuccessful. Hence this appeal to this Court.

2. The only question that arises in this case is as to the applicability of the provisions of Section 64 of the Code of Civil Procedure. On behalf of the respondent it is urged that the transfer by defendant No. 2 in his favour was made before the plaintiff obtained his decree, and, therefore, Section 64 of the Code does not apply inasmuch as the plaintiff's claim could not be enforceable for rateable distribution of assets, the decree not being then in existence. Section 64 of the present Code corresponds to Section 276 of the old Code with certain additions by way of explanation to that section, the additions being in view of the principle enunciated in the case of Sorabji Edulji Warden v. Govind Ramji 16 B. 91. The object of the section is clearly to prevent fraud on decree-holders and to secure intact the rights of attaching creditors as well as of creditors who have obtained their decree and are entitled to satisfaction out of the assets of the judgment-debtor. It is immaterial for the application of Section 64 of the Code whether the decree of the plaintiff had or had not been passed before the time when the transfer was effected. Under Section 73 of the Code on his obtaining a decree the plaintiff was entitled to apply for execution and there was no necessity for him to make any application for re-attachment inasmuch asunder Order XXXVIII, Rule 11, no further attachment was necessary. The claim of the plaintiff is clearly supported by the authority of the case of Sorabji Edulji Warden v. Govind Ramji 16 B. 91 as well as by the language of Section 64 read with Section 73 and Order XXXVIII, Rule 11. This appeal, therefore, is decreed with costs in all Courts.


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