(1.) The question which has been referred for decision is this: In a private transfer made after and during the pendency of an attachment in one suit, void against the title of an auction-purchaser in execution of a decree in another suit under an attachment made after the transfer but while the decree in the former suit remained unsatisfied and the attachment therein was subsisting?
(2.) The circumstances which have given rise xo this reference are these. On the 25th October, 1924, one Appu Chetty obtained a money decree in O. Section No. 497 of 1923 of the Court of the District Munsif of Salem. The decree was transferred to the Court of the District Munsif of Krishnagiri for execution. On the 5 March, 1925, the decree-holder applied in Execution Proceedings No. 132 of 1925 for the attachment and sale of the property, There was then due under the decree a sum of Rs. 2,399-4-6. An order of attachment was passed on the same day and the attachment was effected two days later, the 7 March, 1925. On 20th May, 1926, the judgment-debtors mortgaged the attached property to respondents 1 to 4 to secure a loan of Rs. 1,200. Appu Chetty had previously agreed with his judgment-debtors to accept payment of the amount due under his decree by instalments. On the 22nd August, 1923, Appu Chetty's petition for execution was dismissed in accordance with the agreement arrived at, but the attachment was continued pending the payment of the remaining instalments. On the 15 August, 1925, one Pedda Sambayya Chetty obtained a money decree against the same judgment-debtors in the Court of the District Munsif of Krishnagiri, and on the 15 April, 1926, Pedda Sambayya Chetty applied for the attachment of-the same property in Execution Proceedings No. 322 of 1920 of that Court. Pedda Sambayya Chetty's application for attachment was granted on the 10 June, 1926 and the attachment was effected on the 29 of that month. On the 12 December, 1926, Appu Chetty, to whom there was still owing under his decree a sum of Rs. 568-4-0 applied in the execution proceedings of Pedda Sambayya Chetty for rateable distribution and his application was granted on the 16 December, 1926, the date on which the property was sold under Pedda Sambayya Chetty's attachment. Out of the sale proceeds Appu Chetty received a sum of Rs. 105-14-9, being the amount payable to, him on the rateable basis. The purchaser at the auction held in Pedda Sambayya Chetty's execution proceedings is the appellant in the appeal in which this reference has been made. On the 11 November, 1931, the mortgagee respondents filed a suit on their mortgage in the Court of the District Munsif of Krish-nagiri. The suit was defended by the appellant and the question was whether the mortgagees or he had the better title. The appellant claimed that he had the better title by reason of the provisions of Section 64 and Section 73 of the Civil P. C.. The District Munsif relying on the decision in Annamalai Chettiar V/s. Palanalai Pillai granted the respondents a mortgage decree and his decision was upheld by the Subordinate Judge of Salem. The correctness of these decisions was challenged in a second appeal, which came before Krishnaswami Aiyangar and Somayya, JJ., who after hearing the arguments made this reference.
(3.) From the narration of the facts it will be observed that the property was sold in Pedda Sambayya Chetty's execution proceedings, which were instituted after the mortgage had been created. The appellant says that the mortgage was invalid by reason of the provisions of Section 64 of the Code. The reasoning as this. The mortgage was created during the attachment obtained by Appu Chetty and Section 64 renders the mortgage void notwithstanding that this sale took place in Pedda Sambayya Chetty's execution proceedings. The answer to the question therefore depends on the effect to be given to the wording of Section 64, and this involves the consideration, not only the decision in Annamalai Chettiar v. Palamalai Pillai , but of numerous other authorities.