UMMA VENKATARATNAM AND CO REPRESENTED BY UMMA VENKATA RATNAM Vs. METHEWALA ADAMJI USMAN AND COOF ELLORE

JUDGEMENT

(1.) The fund in dispute in this case represents property originally attached by one of the present respondents before judgment. But we have not been shown that this fact in any way improves his claim or that of the others. None of them had even obtained decrees, when appellant secured his attachment. They applied in execution only after he did so; and the question is whether his application for payment out being (for whatever reason) still pending, when their applications were made, the whole fund should be distributed rateably.

(2.) The lower Court quite properly followed Suikenna Katun v. Mahomed Abdul Aziz 29 Ind. Cas. 239 : 38 M. 221 and passed an order in respondents favour. But that case was decided by a Single Judge and we are, therefore, not concluded by it. I deal with it and not with the decisions in Bisheshar Das v. Ambika Pershad 28 Ind. Cas. 622 : 37 A. 575 : 13 A.L.J. 732 and Thakurdas Moti Lal v. Joseph Iskender 41 Ind. Cas. 516 : 21 C.W.N. 887 : 25 C.L.J. 595 : 44 C. 1072, because in them the discussion proceeded either with reference to the incidents of an attachment before judgment, which are not relied on before us, or on very general grounds.

(3.) With all due deference, I cannot follow Bakewell, J ,in Suikeena Katun v. Mahomed Abdul Aziz 29 Ind. Cas. 239 : 38 M. 221, where he lays down that an attachment under Order XXI, Rule 52, of the Code of Civil Procedure in no circumstances confers priority. In Frederick Peacock v. Madan Gopal 29 C. 428 (F.B.) : 6 C.W.N. 577 the first case relied on by him, the competition being between an attaching creditor and the Official Assignee special considerations arose; and in it and in the other case cited, Sankaralinga Reddi v. Kandasami Tevan 30 M. 413 : 17 M.L.J. 334 : 2 M.L.T. 365, the attachment was of property, which as the language used in the former suggests and the latter states explicitly was not a fund in a Court, but had to be sold before its value could be realized. This affords a clear ground of distinction from the facts before us and, it must be added, those in question before Bakewell, J., for Section 295 of the former Code referred to assets realised in execution and applications made prior to their realization as Section 16 of the Code now in force refers to applications for execution made prior to the Court s receipt of the assets; and accordingly in both the cases relied on by the learned Judge the provision which justified rateable distribution was directly applicable, whilst in the case before him, as in the case before us, it is not. A similarly general statement by the Judicial Committee in Moti Lal v. Karrab-ul-din 25 C. 179 (P.C.) : 24 I.A. 170 : 1 C.W.N. 639 : 7 Sar. P.C.J. 222 : 13 Ind. Dec. (N.S.) 121 that attachment only prevents alienation and confers no title, is no doubt relied on in the Calcutta case above referred to and it, no doubt, was made without reference to any provision of the Code corresponding with the present Section 73. But the question arose with reference to the effect of an attachment, which apparently was made in execution of a mortgage decree and which dearly differed from that in question here and before Bakewell, J., because a sale, which was to transfer ownership, was to follow. It is, with all respect, unsafe to rely on these authorities as decisive, when the question is of circumstances with which they were not concerned.