VENKATASAWMY NAIDU Vs. GURUSAWMI IYER

JUDGEMENT

(1.) Both parties in this case attached the property of the 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 in that 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 application may be dismissed on the ground that he 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 Sankaralinga Reddi v. Kandasimi Tevan 30 M. 413 : 17 M.L.J. 334 : 2 M.L.T. 365. The attachment does not prevent a transfer of the property under an order of Court, and, therefore, an order of adjudication in 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 24 Ind. Cas. 901 : 42 C. 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 Bom. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 : 1 L.W. 567 : 16 M.L.T. 353 : (1914) M.W.N. 747 : 20 C.L.J. 555 (P.C.) and Errikullapa Chetty v. Official Assignee of Madras 32 Ind. Cas. 190 : 39 M. 903. This principle is implied in the provisions of the 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 XXI, Rule 90) such persons cannot object to the sale of the property of their judgment-debtor by the Court.