CHINDHA RUPLA PATIL Vs. CHHAGANLAL SHIVLAL SHETH

JUDGEMENT

(1.) The question involved in this second appeal is as to the validity of the sale-deed in favour of the plaintiffs, Exhibit 39, dated June 8, 1920, for Rs. 8,000. The property originally belonged to one Bhabhutsing. On April 8, 1920, one Bhila, brother of the defendant, brought suit No. 261 of 1920 and attached before judgment the property in suit on April 23, 1920, On April 19, 1920, the plaintiffs brought a suit, No. 287 of 1920, and attached the property before judgment on May 28, 1920. On April 22, 1920, the defendant brought suit No. 294. of 1920, and got the property attached before judgment on June 19, 1920.

(2.) The sale.deed in favolir of the plaintiffs for Rs. 8,000 was passed for satisfaction of the claim in their own suit and the claim of the defendant's brother in suit No. 261 of 1920. Those claims were satisfied, and suit No. 287 of 1920 brought by the present plaintiff's was dismissed for want of prosecution on June 15, 1920, and the suit of the defendant's brother was similarly dismissed on June 22, 1920. The defendant, however, obtained a decree, and in execution of his decree he purchased the property on July 1, 1922. The contest is, therefore, between the defendant as an auction purchaser in execution of his own decree and the plaintiffs as purchasers under the private sale from the original owner on June 8, 1920. Both the Courts decided in favour of the plaintiffs.

(3.) It is urged in this second appeal that the sale-deed in favour of the plaintiffs was void under Section 64 of the Civil Procedure Code as it was effected on June 8, 1920, at a time when there were two attachments before judgment in suit No. 261 of 1920 of the defendant's brother and suit No. 287 of 1920 of the plaintiffs, and that the defendant himself attached the property on June 19 1920. The first question, therefore, arising in this case is whether the private transfer in favour of the plaintiffs was contrary to the attachment within the meaning of Section 64 of the Civil Procedure Code. So far as the attachment of the defendant is conerned, it was made on June 19, 1920. It is clear, therefore that the property transferred on June 8, eleven days before the actual attachment before judgment in the defendant's suit, would not, in any way, be affected by the subsequent attachment. According to Order XXXVIII, Rule 10, of the Civil Procedure Code attachment before judgment shall not affect the rights, existing prior to the attachment, of persona not parties to the suit. The plaintiffs were not parties to the suit in which the defendant levied the attachment on June 19, 1920. The private sale, therefore, on June 8, 1920, in favour of the plaintiffs cannot be said to be contrary to the attachment before judgment in the defendant's suit on June 19, 1920.