ANNAMALAI CHETTIAR Vs. PALAMALAI PILLAI

JUDGEMENT

(1.) The question is as to the effect of the explanation added to Section 64. (formerly Section 276) of the Code of Civil Procedure of 1908 that for the purposes of the section " claims enforceable under an attachment include claims for the rateable distribution of assets". It had been held by the Courts in India that decree-holders other than the attaching decree-holder acquired no right to rateable distribution under Section 295 (now 73) of the Code until assets had been realized in execution, and Sir Lawrence Jenkins delivering the judgment of the Judicial Committee has observed in the recent case in Mina Kumari Bibi v. Bijoy Singh Dudhuria (1916) L.R 44 I.A. 72, 78 : 32 M.L.J. 42. "To bring Section 295 into play certain conditions are necessary, and one of them is that there should be assets held by the Court". Applying this principle the Indian Courts held under Section 276 that, if the judgment-debtor has satisfied the claim of, the attaching decree-holder even by alienating the attached property, that does not give the other decree-holders who have applied for execution any right to question the alienation; and in the case referred which was decided with reference to the old Code, the Judicial Committee seem to have gone if anything further and have held that the attaching decree-holder himself cannot object to a private alienation by the judgment-debtor subsequent to the attachment unless the attached property has been brought to sale in execution of the decree in respect of which the property was attached. In that case a decree- holder, who had attached and brought to sale and purchased the suit property subsequently to a private alienation by the judgment-debtor, was held not to be entitled to defend his title as against the alienee from the judgment-debtor under Section 276 by relying on the fact that before the date of the alienation he had attached the suit property in execution of another decree without bringing the property to sale, in execution of that decree. In these circumstances, it was held that Section 276 did not protect him.

(2.) Section 64 of the present Code affords no greater protection to the attaching decree- holder than Section 276 of the old Code, and if he cannot protect himself against an alienation after attachment unless the attached property is brought to sale in execution of the decree in respect of which the attachment was made, it necessarily follows that other decree-holders who have applied for execution cannot be in any better position. It may even be said that, as regards other decree-holders, the language used in the body of of Section 64 is if anything less favourable than the language of Section 276, because it only renders void as against the claimants specified alienations which are " contrary to such attachment," and an alienation by means of which the decree in execution of which the attachment was made is satisfied can scarcely be regarded as an alienation contrary to the attachment.

(3.) As pointed out by Seshagiri Aiyar, J., full effect is given to the Explanation to Section 64 by regarding it as intended to settle the difference between Sorabji Edulji Warden v. Govind Ramji, F.N. Wadia and Anr. (1891) I.L.R. 16 Bom. 91 and Manohar Das v. Ram Autar Pande (1903) I.L.R. 25 All 431 in favour of the Bombay decision. Further, if it had been intended to prevent allalienations of the attached property after attachment unless made in execution of the decree and for the benefit of the decree-holders entitled to rateable distribution under Section 73 (formerly Section 295), the legislature would have said so plainly. On the contrary, not only is the language of the body of Section 64 if anything more restrictive than the language of Section 276, but the legislature has strengthened the provisions of the former Section 275 by providing in Order 21, Rule 59 that on satisfaction of the decree, whether made through the Court or certified to the Court, the attachment shall be deemed to be withdrawn, whereas; Section 275 only provided for its being withdrawn in such event on the application of any person interested. There are other alterations pointing the same way which are fully dealt with in the opinion of Kumaraswami Sastri, J. The fact that, when the attached property has been sold in execution, the other decree-holders are now expressly empowered to apply to set aside the sale under Order 21 Rule 90, a point on which there was a conflict of opinion under the former Section 311, does not appear to me to affect the present question. A decree-holdes who is entitled to share in the sale proceeds should obviously be regarded as interested in the sale.