BABU BINDESHRI PERSHAD CHAND Vs. BABU GIRDHAR DAS

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiffs claimed possession of a 2-annas share in the village of Gopalpur, in the alternative the plaintiffs claimed a decree for Rs. 764 to be realised by the sale of an 8-annas share in the village in the hands of the defendant No. 2. It appears that the plaintiffs and a, brother of theirs owned an 8-annas share in the village. The remaining 8-annas were held by one Debi Dayal Singh. The revenue of this particular village had been assigned to the jagirdar of Sikriganj by the Government. The jagirdar obtained a simple money-decree against the plaintiffs, their brother and Debi Dayal Singh. In execution of this decree the decree-holders attached the whole 16-annas of the village. In the meanwhile Debi Dayal sold his 8-annas to the defendant No. 1. Then 4-annas out of 16-annas were put up for sale in order to satisfy the decree. These 4 annas were also purchased by the defendant No. 1. The sale to the defendant No. 1 of the 8-annas is dated the 1st of June 1903. The date of the certificate of the auction-sale is the 20th of January 1905. The contention of the plaintiffs is that it must be assumed that at the auction-sale 2 -annas belonging to Debi Dayal were sold and 2-annas belonging to the plaintiffs and their deceased brother. Under these circumstances the plaintiffs contend that they are entitled to possession of 2-annas and that the private sale was only effectual to the extent of 6-annas of Debi Dayal. We think that this contention is not correct. It is no doubt true that the sale by Debi Dayal in favour of defendant No. 1 was after attachment. But there was nothing to prevent Debi Dayal selling his share except the provisions of Section 64 of the Code of Civil Procedure. THIS section is as follows: Where an attachment has been made any private transfer contrary to such attachment shall be void as against all claims enforceable under the attachment." THIS means that if the decree-holders had been unable to realise the amount of their decree out of the shares left unsold, they would be entitled to proceed against the share of Debi Dayal notwithstanding the private sale to defendant No. 1. As to the alternative relief it has clearly no force. Assuming that the plaintiffs paid more than their share of the decree obtained against themselves and Debi Dayal, their rights were to get a simple money contribution from Debi Dayal. The fact that they paid more than their share of the decree could in no way create a charge in their favour on the property which was sold by Debi Dayal to defendant No. 1, The appeal fails and is dismissed with costs. The decree will not issue until the respondents have made good the deficiency.