RAMESWAR SINGH Vs. RAMTANU GHOSE AND ANR

JUDGEMENT

(1.) The facts of this case are very simple. Messrs. Watson and Company, under a decree against one Amanulla Molla, obtained an order for the attachment of the estate belonging to Amanulla Molla, viz., Pergunna Kaligram Kalishufa. The prohibitory order was not served on Amanulla, nor was notice of the attachment fixed in the Revenue Court of the district, or in any conspicuous part of the estate. The attachment was therefore not an attachment made known in the manner required by section 239 of Act VIII of 1859. On the 24th of November 1864, the property was advertised for sale. On the 20th of November, three days before the day advertised for the sale of the property, Amanulla put in a petition, reciting that the decree-holder had agreed to give him time on the condition that the attachment would remain good. The petition goes on in these terms:-- I will not in any way alienate the attached property, until the whole of the decree is satisfied, & c." The petitioner then states that the decree-holders had consented to all the above terms." On the 26th of the same month, Amanulla mortgaged, by a deed of katkabala, a certain village of the said pergunna to the respondent in this case, Ramtanu Ghose, for a sum of rupees 700. Subsequently to the date of that mortgage, Messrs. Watson and Company from time to time allowed the sale to be postponed, and ultimately sold their decree to one Lachman Chandra Ghose. The execution case was then struck off the file. On the 18th of February 1866, fresh proceedings in execution were taken by Lachman Chandra Ghose, the assignee of Messrs. Watson and Company. The property was again attached, and ultimately sold to the present appellant. Ramtanu having taken steps to foreclose the mortgage, the present appellants, to prevent the foreclosure, paid into Court the amount of the mortgage, and now sue to recover back that amount with interest from him, and the question in the present special appeal is whether they were entitled to recover back that amount.

(2.) It appears to us that the position of the parties when Ramtanu Ghose acquired his title as mortgagee in November 1864 was simply this:-- Amanulla was the full owner of the property, and consequently was capable of conferring a tide to the property on Ramtanu Ghose as mortgagee. A written order for the attachment of the property had been issued. But under section 240, Act VIII of 1859, it is only after the written order is duly intimated and made known in the manner provided by that Act, that a private alienation of the property is null and void. There was nothing in the order for attachment, as it existed in December 1864, to prevent Ramtanu Ghose from acquiring a valid title under his mortgage. An attaching creditor has the full power to protect his own interests by serving the attachment in the manner prescribed by the Act. If he fails to notify the attachment, it is his own fault. But it is contended by the appellants that the petition of 21st November constituted a charge on the property. It appears to us that it is a complete mistake to suppose that it is anything of the sort. The petition does not create or affect to create any new rights as between Messrs. Watson and Amanulla Molla. It merely recites and states what the parties believed and assumed to be their legal rights under the existing circumstances. If it had been intended as a mortgage or charge, it would probably have been stamped and registered as such. We think it would be most mischievous to give to a petition of this sort an effect which it was never intended by the parties to have. It would be most prejudicial to the rights of third parties, if we were to hold that rights and obligations which are clearly defined by such an Act as Act VIII, can be extended by loose expressions contained in some petition put into Court in the course of the proceedings. A case has been cited, Duma Sahu v. Jeoynarayan Lal Before Mr. Justice Glover and Mr. Justice Mitter, in which an analogous petition was treated as creating a lien; and if.