VISHNU SHANKAR JOSHI Vs. YUSUFF NURMAHAMAD

JUDGEMENT

(1.) One Merwanji had several money decrees standing against him. In execution of one of them, the Thana First Class Court attached a certain land belonging to him on May 25, 1916. About the same time in execution of another decree the Panvel Second Class Court also attached the same property. The fact that the Thana Court had attached the property had not been brought to the notice of the Panvel Court.

(2.) Under Sec. 63 of the Civil Procedure Code, where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property, and shall determine any claim thereto, and any objection to the attachment thereof, shall be the Court of highest grade. Sub-section (2) says that nothing in this section shall be deemed to invalidate any proceeding by a Court executing one of such decrees.

(3.) The Thana Court sold the property on February 28, 1917, and the Panvel Court sold the same property on March 3, 1917. Under Section 65 of the Code " where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute." But until the sale becomes absolute, the property cannot be said to be vested in the purchaser, who has only an inchoate right, which becomes permanent when the sale is made absolute. The sale by the Thana Court was never confirmed. The judgment-debtor applied to set it aside under Order XXI, Rule 89, and ultimately it was decided by compromise that if the judgment-debtor deposited a certain amount by a certain time the sale should be set aside. The deposit was accordingly made by the judgment-debtor on September 11, 1920, and the sale was set aside, and the proceedings in the Thana Court thus terminated. The sale of the Panvel Court was duly confirmed and the pre. sent plaintiff is the purchaser. The judgment debtor had obtained from defendants Nos. 2 to 4 the necessary money to set aside the sale by the Thana Court, In consideration thereof he sold the property to them on September 21, 1920, with certain other properties, and put the purchaser in possession thereof.