VENKATASAMI NAIDU Vs. GURUSAMI AIYAR

JUDGEMENT

(1.) Both parties in the case attached the property of same person before judgment in their respective suits against him, and both obtained decrees for money, one in the Court of the District Munsif of Tanjore and the other of Valangiman. Both parties applied in the Court of the District Munsif of Valangiman for execution of their respective decrees, but the first application of the respondent was dismissed. The appellant s application resulted in a Court sale in which he purchased the attached property.

(2.) The respondent has now again applied for a sale of the same property in execution of his decree, and the appellant has applied in those proceedings for an order that the the application may be dismissed on the ground that the has become the owner of the property.

(3.) It is well established that an attachment confers no interest in the property which is in custodia legis and the effect of attachment is to render any private alienation void as against all claims enforceable under the attachment (See Civil Procedure Code, Section 64 and Krishna Bai v. The Collector and Government Agent, Tanjore (1907) I.L.R. 30 Mad. 413. The attachment does not prevent a transfer of the property under an order of Court and therefore an order of adjudication in the Insolvency which vests the property of the debtor in the Official Assignee is good as against an attaching creditor See Raghunath Das v. Sundar Das Khetri (1914) I.L.R. 42 Cal. 72 and Erikulappa Chetty v. The Official Assignee Madras (1915) I.L.R. 39 Mad. 903. This principle is implied in the provisions of Civil Procedure Code, Section 73 under which persons who have applied for execution of their decrees are entitled merely to share the assets realised and it is clear that in the absence of fraud, (See Order 21 Rule 90) such persons cannot object to the sale of the property of their judgment-debtor by the Court.