DEEKAPPA MALAPPA HUBLI Vs. CHANBASAPPA RACHAPPA NEELI

JUDGEMENT

(1.) The appellant in this case obtained a decree on January 23, 1923, in Suit No. 201 of 1921 in the Court of the First Class Subordinate Judge of Dharwar against one Chanbasappa Rachappa, respondent No. 1. He had obtained an attachment before judgment on certain properties of the respondent on July 12,1922. This attachment was confirmed by the decree. Other creditors of the respondent had obtained decrees against him in the Court of the Second Class Subordinate Judge at Hubli. The present opponent No. 2 obtained a decree in the Hubli Court on June 23, 1922, and attached certain of the respondents property on June 29, 1922. That property was sold in execution by the Hubli Court on March 16, 1923. Opponent No. 3 obtained a decree in the Hubli Court on July 9, 1922, and in execution of that decree certain other property of the respondent was sold on July 14,1923. All the properties sold in execution of these two decrees had been already attached before judgment in the Suit No. 201 of 1921.

(2.) It will be seen, therefore, that in spite of the attachment having been levied on the respondents property by the First Glass Subordinate Judge's Court, the properties were sold in , execution of decrees of the Second Class Subordinate Judge's Court, and the sale proceeds were lying in that Court, The present appellant made an application to the First Class Subordinate Judge of Dharwar that the sale proceeds should be sent for from the Second Class Subordinate Judge's Court Judge first made an order that the sale proceeds should be sent to his Court, and the claimants were referred to Section 63, Civil Procedure Code, to have their claims settled. The same clay he appears to have withdrawn that order and told the applicant that he should move the District Judge for the transfer of the sale proceeds to the First Class Subordinate Judge's Court, referring to the decision in Patel Naranji Movaji V/s. Haridas Navalram (1893) I. L. R. 18 Bom. 458. In that case some property had been first attached in execution of a decree of the Second Class Subordinate Judge of Surat and was thereafter attached in execution of a decree of the First Class Subordinate Judge. The Second Class Subordinate Judge's Court sold the property, and the holder of the decree passed by the First Class Subordinate Judge then applied to the Second Class Subordinate Judge to set aside the sale on the ground that it was invalid under Section 285 of the Code of 1882, as having been made while the attachment levied by the First Class Subordinate Judge was pending, and on the Second Class Subordinate Judge's refusal to do so, he applied to the High Court under its extraordinary jurisdiction. It was held that the sale was good, and that the applicant had no right to ask the Second Class Subordinate Judge to set aside the sale as made without jurisdiction, although possibly he might have applied to the District Judge to transfer the proceeds realized by the sale to the First Class Subordinate Judge's Court.

(3.) The section of the Code of 1908 corresponding to Section 285 of the Code of 1882 is Section 63 (1) Sub-section (2) of that section has been added probably in consequence of the decision to which I have just referred. It runs as follows :-" Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees."