TINCOWRI RAI Vs. SRI RAMMANIK AND ANR

JUDGEMENT

(1.) It appears to me that an attachment under the sections which authorize attachment before judgment, commencing with section 81 of the Code of Civil Procedure, is not an attachment within the meaning of section 270, and that the party who attaches property before judgment, if he wishes to avail himself of that property in satisfaction of his decree, must proceed under Chapter IV for the execution of his decree against the property. I have very little to add to what was stated by Mr. Justice Mitter when referring this case; but it appears to me that property attached prior to decree is not, immediately upon the party's obtaining a decree, attached under that decree. The defendant, whose property is attached before judgment, has a right at any time to have that attachment withdrawn upon his giving security to perform the decree. Suppose a plaintiff who has obtained an attachment prior to decree, subsequently obtains a decree, and he lies by and does nothing under his decree; and suppose on the expiration of two years and 360 days from the date of the decree, the defendant comes in and gives security to perform the decree under section 87 I apprehend he would have a right to have the attachment withdrawn, and the withdrawal of the attachment at the instigation of the defendant would not be a proceeding by the plaintiff to obtain execution of his decree. If a plaintiff, one year after the attachment has been withdrawn, applied for execution of his decree, which he had obtained two years and 360 days before the attachment was removed, I apprehend he would be barred by the Statute of Limitations, because he had taken no proceeding to obtain execution of his decree within three years from the time of his obtaining the decree, and he could not say that the property, which he had attached prior to decree, was, during the whole of the two years and 360 days, property which was attached in execution of his decree.

(2.) Again, if the word attached in section 270 applies to attachment prior to decree, section 89 of the Code of Civil Procedure might be altogether nullified. Suppose A gets a decree on the 1st of January, and attaches property in execution of his decree on the same day. According to section 89 he has a right to do so, and his attachment in execution of his decree would prevail over the attachment of any other creditor who might have an attachment prior to decree. It appears to me that the word attached in section 270 means attached in execution of a decree within the meaning of Chapter IV of the Code, and that the words in all cases of attachment under the preceding sections," in section 242, have reference to the preceding sections in Chapter IV relating to execution of decrees, and not to the preceding attachment under section 81 and the following sections of the Act, between which and the sections relating to the execution of decrees, there are various provisions relating to the trial of the suit, and other matters not relating in any way to the execution of decrees.

(3.) I am of opinion that in the present case both parties having obtained their decrees at the same time, and having attached the property at the same time, were equitably entitled to have the proceeds of the execution divided between them, and that the party who obtained an attachment prior to decree was not, in consequence of his having so done, entitled to priority. If we were to hold that he was entitled to priority because he obtained an attachment prior to decree, we should substantially hold that a creditor might obtain priority when a fraudulent debtor was removing his property out of the jurisdiction of the Court, which he could not have obtained if the debtor had been honest and had not endeavoured be evade the law.