ATMARAM AHAJI Vs. UDERAJ SHEODIN

JUDGEMENT

(1.) 1. In Civil Suit No. 303 of 1924 one Krishna Bai obtained a money decree against Bhagaji. In execution of the decree she attached the judgment-debtor's field No. 18/2 on 17th May 1925 and brought it to sale in execution on 8th December 1925. The execution-purchaser deposited Rs. 262-8-0 being a quarter of the purchase money Its. 1,050. In Civil Suit No. 455 of 1922 one Uderaj obtained a decree against Bhagaji and applied for execution of his decree on 14th November 1925. Both the execution proceedings were pending in one and the same Court which on Uderaj's application for execution ordered rateable distribution. Before the auction-sale was held at the instance of Mt. Krishnabai, the judgment-debtor Bhagaji sold field No. 18/2 on 25th November 1925 to one Atmaram and on 6th January 1926 deposited into Court Rs. 52.8-0 being the amount equivalent to 5 per cent of the purchase money as compensation payable to the auction-purchaser and instead of depositing the decretal amount due to Krishnabai he paid the amount privately to her pleader apparently on 6th January 1926, as would appear from the receipt of that date (Ex. P-3). Thereafter Uderaj obtained an order of attachment of the same field on 13th January 1926 and brought it to sale on 15th April 1926 and became himself the purchaser. He obtained physical possession of the field in due course. Atmaram, the private purchaser under Bhagaji's sale deed dated 25th November 1925 intervened under Order 21, Rule 100, Civil P. C., but without success. He therefore instituted a suit out of which this appeal arises against Uderaj for recovering the field. His suit was dismissed on the ground that the private alienation in favour of Atmaram having been made during the pendency of Krishnabai's attachment was inoperative against Uderaj's claim which was enforceable under the same attachment. His appeal having been dismissed Atmaram has come up in 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, Civil P. C. 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 Atmaram was valid against Uderaj f of the reason that Krishnabai's decretal amount having been paid on 6th January 1926 the attachment came to an end, and with it Uderaj's claim which was enforceable under that attachment. Reliance is placed on Mina Kumari Bibi v. Bijoy Singh Dudharia AIR 1916 PC 238, Bhupal v. Kundan Lal AIR 1921 All 45 and Annamalai Chettiar v. Palamalai Pillai AIR 1918 Mad 127; Illus. 3 and 4 at pp. 208 and 209, Mulla's Civil Procedure Code, and Gangayya v. Venkataramayya AIR 1923 Mad 230, and it is contended that the decretal amount of Krishna Bai having been paid off her attachment came to an end and that Uderaj's claim which was enforceable under that attachment could not prevail against the private alienation. It must be noticed that Krishna Bai's decretal amount was paid on 6th January 1926 after the field was sold in execution on 8th December 1925, on which date the execution-purchaser deposited Rs. 262-8-0 and the balance, namely, Rs. 787-8.0, on 18th December 1925. The sale could only be set aside in accordance with the provision of Order 21, Rule 89, Civil P.O., which requires the judgment-debtor to deposit the amount payable under the decree into Court. Although the money was not actually deposited into Court the receipt evidencing the payment to the decree-holder was produced on 6th January 1926; consequently the production of the receipt would in point of law be deemed to be equivalent to deposit for the purposes of determining the rights of the parties affected by it.

(3.) IT is already pointed out that the auction-purchaser had deposited the entire purchase-money by 18th December 1925 and as these assets came into the custody of the Court Uderaj had obviously the right to rateable distribution on that date. Consequently the private sale held on 15th November 1925 could not defeat his claim. The case reported in Bhupal v. Kundan Lal AIR 1921 All 45 is also distinguishable. The material facts of the case are as follows: One Koka Mal attached two houses on 9th June 1912 in execution of his own decree. Lala Mal was another decree-holder who applied for execution of his own decree and the property having been attached in Koka Mal's decree he applied for rateable distribution on 12th February 1913. The property was sold in execution on 25th March 1913 and the purchaser deposited 1/4th of the purchase-money in Court. On 2nd April 1913 the judgment-debtor and Koka Mal applied to the Court for setting aside sale on the ground that the decree had been satisfied out of Court. The auction-sale was however set aside on 24th May 1913 on the ground that the auction-purchaser failed to deposit the balance of the purchase-money. Thereafter on 26th May 1913 the judgment-debtor executed a mortgage. Then on 20th June 1913 Lala Mal applied for and obtained attachment of the property in execution of his own decree and it was put to sale in execution and purchased by one Piari Lal who assigned his right to Kundan Lal. The suit was filed on the basis of a mortgage-deed dated 26th May 1913 and the contest arose between the mortgagee and Kundan. Their Lordships of the Allahabad High Court on the authority of Mina Kumari Bibi v. Bijoy Singh Dudhuria AIR 1916 PC 238 and Annamalai Chettiar v. Palamalai Pillai AIR 1918 Mad 127 held that the mortgage was operative against Lala Mal's claim for rateable distribution and that Kundan derived no title under the execution sale in favour of his predecessor-in title Piari Lal as it was held under the subsequent attachment of Lala Mal.