BIBI MIYAKHAN Vs. GULABCHAND RAMCHAND

JUDGEMENT

(1.) The facts of the present second appeal are shortly these:--On the 6th of July 1900, Dagdu obtained a decree against Baba and applied in execution for its attachment. The property was attached, but on the 30th of July the parties entered into a private compromise with the result that Baba executed a sale-deed of the attached property in favour of the present appellant s husband. When that decree was satisfied, it is not quite certain; but one of the plaintiffs witnesses deposes that the decree was satisfied after the sale to the plaintiff s husband. However that be, we have this fact that this private satisfaction of the decree was certified to the Court and the darkhast of Dagdu was disposed of by the Court on the 1st of December 1902. Now, it is true that although the attachment must be regarded as having fallen to the ground on this latter date, yet we must see what the state of things was on the nth of August 1900, when the other decree-holder, namely, Hashambhai presented his darkhast for execution of his decree against Baba. That darkhast (Exhibit 49) was presented on the 11th of August 1900, and in it Hashambhai prayed that either he should be held entitled to rate able distribution under Section 295 of the old Civil Procedure Code (Act XIV of 1882), or the property already attached in execution of Dagdu s decree, ought to be attached in execution of his own. This latter prayer the Court was not in a position to grant for the simple reason that the law did not allow a second attachment of property that already had been attached in execution of a prior decree. Then the only right which Hashamhhai had, allowed to him by law, was rate able distribution. But even that right was dependent upon the continuance of the attachment in execution of Dagdu s decree. If Dagdu and his judgment-debtor entered into a private compromise, and the result of that was to put an end to the attachment, then Hashambhai was bound to take some action by which to prevent his rights being prejudiced. Hashambhai had taken that action, because in the darkhast he had applied to the Court that there ought to be either rate able distribution allowed to him, or there should be another attachment, and the Court had passed an order on the nth of August securing that attachment for him. Assuming that that was not the proper order to make under Section 295, when Dagdu s attachment fell to the ground on account of the compromise between him and the judgment-debtor, this order in favour of Hashambhai about a second attachment was there to take the place of the old attachment for his benefit. Therefore, we must take it that Hashambhai had done all he was bound to do in order to prevent a private alienation of this property, and to see that it was left free for sale in execution of his own decree.

(2.) The attachment by Dagdu did indeed prove abortive for the purposes of his decree when his decree was satisfied but it did not for the purposes of Hashambhai s decree. It survived by force of his application for either rate able distribution or a second attachment.

(3.) We must, therefore, hold that the private sale was void under Section 276 of the old Civil Procedure Code and the decree appealed from must be confirmed with costs.