DULAR SINGH Vs. RAM CHANDER

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for a declaration. The facts which have given rise to the second appeal may briefly be stated as follows: Ram Chander, plaintiff, instituted a suit against Pearey Lai, defendant, to recover a sum of money on 29 April 1927 and on the same date he applied for attachment before judgment of a decree which Pearey Lai held against one Jwala Prasad. The application for attachment was granted by the Court. Earn Chander's suit was first decreed ex parte, but later on the ex parte decree was set aside and the suit was dismissed by the first Court. Earn Chander appealed with the result that his suit was decreed. On 2 June, 1927, subsequent to the date on which the attachment order had been passed, Pearey Lai executed a deed of as signment under which he assigned his rightsin the decree against Jwala Prasad to Dular Singh, defendant- appellant. After the suit of the plaintiff had been decreed by the appellate Court, he made an application for execution and attached the aforesaid decree of Pearey Lai against Jwala Prasad. Dular Singh successfully objected to the attachment. Thereupon, Earn Chander, plaintiff, instituted a suit for a declaration that the decree held by Pearey Lai against Jwala Prasad was liable to be sold in execution of his own decree against Pearey Lai. The suit was dismissed by the first Court. The plaintiff appealed against that decree which was reversed by the lower appellate Court and his suit for a declaration Vas decreed. Dular Singh, defendant 1, has come up in second appeal before this Court.

(2.) Two points had been taken up before the lower appellate Court on behalf, of the defendant-appellant: one was that there had not been any valid attachment of the decree of Pearey Lai and therefore it created no right in plaintiff's favour; the second point taken was that even if it be held that the attachment was valid, nevertheless, the plaintiff could not ask for the sale of the decree after the dismissal of his suit by the first Court, which had the effect of putting an end to the attachment made at his instance. I proceed to consider these two points. Section 64, Civil P.C., lays down that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend, or other moneys, contrary to such attachment, shall be void as against all claims enforceable under the attachment. For the purposes of this section the attachment must have been made in the manner and form prescribed by the Code. The mere passing of an order of attachment or the mere issue of an order from the office is not sufficient to make the attachment; but the process must be followed by actual attachment and the person prohibited cannot be deemed to know that he is prohibited unless the prohibition is served upon him or is made known in the manner recognised by law. Until therefore an attachment is actually effected the debtor is free to alienate his property, and such alienation would be valid. It follows therefore that in judging whether an alienation made by the judgment-debtor can be avoided, the date that must be looked to as the starting period of possible avoidance, is not the date of the order of the attachment but that of actual attachment, that is the actual attachment cannot have a retrospective effect from the date of the order. The words "where an attachment has been made" in Section 64, Civil P.C., mean an actual attachment effected in the manner prescribed by law, and do not refer to the order of the attachment passed by the Court. In Muthia Ghetti V/s. Palaniappa Chetti A.I.R. 1928 P.C. 139 their Lordships of the Privy Council made the following observations: No property can be declared to be attached unless, first, the order of attachment has been issued, and secondly, in execution of that order the other things prescribed by tie rules in the Code have been done.

(3.) As remarked by Mahmud, J., in Ganga Din V/s. Khushali Bam (1885) 7 All. 702 before property could be subjected, to the restriction imposed by this section there must be a perfected attachment.