KATTIKOOLATHIL MAMMU Vs. VINAYAKA KAMATH

JUDGEMENT

(1.) IN 'Viriah v. Subbarao', 1949-1 MLJ 316 at p. 318 : (A IR (36) 1949 Mad 687 following the observations of Spencer & Venkatasubba Rao JJ. in 'Dhanammal v. Veeraraghavahi', 44 MLJ 325: (AIR (10) 1923 Mad 487), Horwill J., & myself have laid down that the word "interest" in Order 21, Rule 89 has got a very wide import & should be construed very liberally. Any inchoate right which a party may have over a property may be sufficient interest to enable him to apply under Order 21, Rule 89. Mr. Achuthan Nambiar contends that attachment of property does not confer any interest on the attaching creditor, except that if the property is alienated by the act of parties such alienation will have no precedence over the attachment. He invites my attention to the observations in 'Krishnasami Mudaliar v. Official Assignee, Madras', 26 Mad 673 at p. 678 to the effect that an order of attachment merely restrains a debtor's debtor from paying to the debtor the money attached & restrains the debtor from receiving the same. IN 'Narayanan v. Pappayi', 53 M L J 229 at 232 : (AIR (14) 1927 Mad 783), there is an observation that it has frequently been held that mere attachment of property does not create any interest in the property & therefore it follows that the expression "affected by the sale" should not be construed as if the words were "having an interest in the property". That mere attachment does not create interest in property is also seen from the decisions in 'Krishnamma Naicker v sivasami Chettiar', 1943-2 MLJ 281: (AIR (30) 1943 Mad 709) & 'Manicka Chettiar v. Official Assignee. Madras', AIR (3D 1944 Mad 333 : (1944-1 MLJ 116). It is also evident from Section 64, Civil P. C. that what the attachment prohibits is either payment of the money by the debtor's debtor or the alienation of the property. It has to be observed that Order 21, Rule 89, has undergone some transformation. The words originally were "holding an interest therein by virtue of a title acquired before such sale". Now these words have been altered & the words "holding any interest' have been substituted. It seems to me that the substitution is intended to give a more beneficent & wider right than was contemplated before. A person who has attached property has certainly got interest in seeing that the property is not alienated or otherwise transformed. I am inclined to hold that an attaching creditor has got an interest in the property sufficient to enable him to make the deposit contemplated under Order 21, Rule 89.

(2.) IN such circumstances the decision of the lower Ct. is right & the civil revn. petn. is dismissed. No costs.