VIBUDHA PRIYA THIRTHA SWAMI Vs. YUSUF SAHIB

JUDGEMENT

(1.) For the purposes of the question to be decided in these appeals, the material facts and dates are as follow: One Kalinga Hebbara obtained a decree against one Krishnaraya; On 5 July 1900, he attached certain property belonging to Krishnaraya and the sale was fixed for 22nd August. Yusuf and Banubibi (the defendants in these suits) had also obtained decrees against Krishnaraya. On 19 July, Yusuf applied for an order for rateable distribution under Section 295 of the Civil P. C. and on 27th July, an order for rateable distribution was made. On 23 July, Banubibi applied for a similar order and on 1 August, the order was made. Meantime on 18 July, the plaintiff bought from Krishnaraya, the judgment-debtor, the property which had been attached by Hebbara. The consideration for sale was a sum of Rs. 1,500. The property had been mortgaged to the plaintiff by Krishnaraya. The sale-deed recites that the amount due to the plaintiff on his mortgage and certain moneys were set off against the sum of Es. 1,500. Apparently, there was good consideration for the sale and the transaction was bona-fide. The sale-deed also rocites the attachment by Hebbara and makes provision for payment by the plaintiff to Hebbara of the amount of his judgment-debt, in order that the property might be freed from the attachment. On 28 July, the amount of the judgment- debt was paid into Court by the plaintiff to be paid to Hebbara in satisfaction of his decree against Krishnaraya. On 1 August and 3 August, the defendants obtained orders for attachment. On 23 August, satisfation of Hebbara's decree was entered up. Hebbara brought the claims of the other judgment-creditors to the notice of the Court and the order entering up satisfaction was made without prejudice to their rights to question the sale to the plaintiff. The attachment made by Hebbara was not formally withdrawn. The plaintiff claimed the property. Yusuf and Banubibi resisted the claim on the ground that they were entitled to execution against the property and rateable distribution. The plaintiff's claim was rejected. The suits now under appeal were then brought by him. The Munsif decided in favour of the plaintiff, but the District Judge held that the sale to the plaintiff was void and dismissed his suits.

(2.) On these facts the question for determination is whether the sale to the plaintiff was void as against the defendants under Section 276 of the Code.

(3.) This depends upon whether, in the events which happened, assets were realized by sale or otherwise in execution of a decree within the meaning of Section 295 of the Code so as to entitle the defendants to the benefit of that section. Their rights depend upon that section and if they have no rights under that section they can have no " claims enforceable under the attachment" within the meaning of Section 276. In my opinion on the facts of this case there was no realization of assets by sale or otherwise in execution of a decree. The sale was not made under any process of court. It was made under a private arrangement between the judgment debtor and the plaintiff. No doubt at the time of sale the property had been attached, but where moneys are realized by a private sale of attached, property by the judgment-debtor to a third party there is not, as it seems to me, a realization of assets in execution within the meaning of Section 295. There is no doubt a realization of assets, but the realization is not in execution. "In execution" means by execution, i.e., by some process of the court. I do not think the words "wherever assets are realized by sale or otherwise in execution of a decree" can be read as if they simply meant where assets are realized for the purposes of satisfying a decree. The fact that the amount of the judgment-debt was paid into court does not make the money so paid "assets realized in execution."