ATMARAM AKOJI Vs. UDERAJ SHEODIN

JUDGEMENT

(1.) NIYOGI , A.J.C. 1. One Krishna Bai obtained a money decree against Bhagaji in civil suit No. 309 of 1924. In execution of the decree she attached the judgment-debtor's field on 17th June 1925 and brought it to sale, in execution, in October 1925. One Uderaj, in civil suit No. 455 of 1922, obtained a decree against Bhagaji and applied for execution of his decree on 14th January 1925. The execution proceedings arising out of both the aforesaid suits were pending in one and the same Court. On Uderaj's application for execution the Court ordered rateable distribution. Before, however, the auction-sale hell at the instance of Mt. Krishna Bai was confirmed, Bhagaji made a private alienation of the field on 25th November 1925 in favour of Atmaram. The decretal amount due to Krishna Bai was deposited on behalf of Bhagaji under Order 21, Rule 89, Civil P. C., with the result that the execution sale was set aside. Thereafter Uderaj obtained an order of attachment of the same field and brought it to sale in execution and himself became the purchaser. He obtained physical possession of the field in due course. Atmaram who had purchased the same field from Bhagaji on 25th November 1925 out of Court intervened under Order 21, Rule 100, Civil P.C. The proceeding terminated against him. Atmaram consequently instituted a suit against Uderaj for recovery of the field. Atmaram's suit was dismissed on the ground that the private alienation in favour of Atmaram having been made during the pendency of Krishna Bai's attachment was inoperative and could not prevail against Uderaj's claim enforceable under the same attachment. The lower appellate Court confirmed the decree. Atmaram has preferred this second appeal.

(2.) IT is urged on his behalf that Uderaj, the respondent, was not entitled to rateable distribution unless he applied for execution in pursuance of Order 21 Rule 11. This contention is obviously unfounded in view of the actual application made on 14th November 1925, a certified copy of which is filed as Ex. D-1. Next it is urged that the private sale made in favour of the appellant Atmaram was valid against Uderaj on the ground that as soon as Krishna Bai's decretal amount, was deposited in Court under Order 21 Rule 89, Civil P. C., the attachment came to an end, and with it Uderaj's claim which was enforceable under that attachment. It may be readily conceded that the payment of the decretel amount in Court resulted in setting aside the sale, but the question is whether it would make the attachment inoperative. Reliance is placed on Sorabji Coovarjee v. Kala Raghunath (1912) 36 Bom 156, Vibudhapriya Tirthaswami v. Usuf Sahib (1905) 28 Mad 380 and Bhupal v. Kundanlal AIR 1921 All 45. The case in Sorabji Coovarji v. Kala Raghunath (1912) 36 Bom 156 is distinguishable on facts. In that case the judgment-debtor deposited the decretal amount with incidental costs in Court under Order 21, Rule 55. It was held that the money so deposited was not available for rateable distribution among other judgment-creditors who had also applied for execution. The reason was that the money in deposit was not regarded as assets within the meaning of Section 73, Civil P. C., as it was not realised in course of execution, but was voluntarily paid by the judgment-debtor. The view propounded in this case was criticised in Nathmal v. Maniram AIR 1919 Bom 152 Pratt, J., observed as follows at p. 978 (of 21 Bom. L. R.): I venture to doubt whether this is not too restrictive a construction under the amended section in which the words 'sale or otherwise' have been dropped and in which there is merely an implication that the assests should have been realised or obtained in execution proceedings.

(3.) IN Thiraviyam Pillai v. Lakshman Pillai AIR 1919 Mad 617 also the case reported in Sorabji Coovarji v. Kala Raghunath (1912) 36 Bom 156 was dissented from. Thus it would appear that even on the assumption that the deposit made under Order 21, Rule 89, was tantamount to a payment contemplated in Order 21, Rule 55 (a), it would not follow, in view of the extended meaning given to the words "assets" under the present Section 73, Civil P. C., that the money so deposited was not subject to rateable distribution. The fact that in the present case Uderaj was not given the benefit of Section 73 in respect of the amount deposited into the Court is immaterial for the purpose of deciding his rights in respect of the private alienation made in favour of Atmaram. Reference is also made to Annamalai Chettiar v. Palamalai Pillai AIR 1918 Mad 127. That case is obviously distinguishable for the reason that the judgment-debtor instead of depositing the decretal amount in Court paid it to the decree-holder directly out of Court. As the assets were not actually held by the Court, the decision has no bearing on the present case. No doubt in Harai Saha v. Faizlur Rahman (1913) 40 Cal 619 it was held that the money paid in Court under Order 21, Rule 89 did not constitute assets within the meaning of Section 73, Civil P. C. In view of the recent trend of judicial opinion already referred to the view taken in this case seems to be untenable. Although Rule 89 specifically mentions payment to the decree-holder, that is only an injunction to the judgment-debtor as to what amount he has to pay for the purpose of getting the sales set aside. The sale may be held at the instance of one of the execution creditors but any amount received from the judgment-debtor in Court under pressure of the sale must enure for the benefit of all the execution creditors who have acquired a claim to rateable distribution under Section 73. Even assuming that Uderaj was not entitled to claim rateable distribution in respect of the amount deposited by the judgment-debtor, Bhagaji, for the purpose of setting aside the execution sale, it does not follow that the attachment would cease. The deposit would only result in the sale being set aside. A similar view was taken in Chunnilal v. Karamchand AIR 1922 Bom 241 (of 46 Bom.) their Lordships observed: When an attachment has been levied on property in execution of a decree then any attempt by the judgment debtor to deal thereafter with the property must be considered as contrary to the attachment, and the transferee or mortgagee must be considered as taking the transfer or mortgage, subject to all claims which could be made against the property attached, which by the law are not confined to claims of creditors attaching before the transfer, but will also include the claims of any other execution creditors who may apply for execution before the assets are realised.