Judgement

Appeal from a judgment and decree of the High Court (March 26, 1912) reversing a judgment and decree of the Subordinate Judge of Murshidabad (March 29, 1909).

The suit was instituted by the appellant against the respondent and one Chhatrapat Singh for a declaration that certain property-bought by the respondent at a sale in execution of a decree belonged to her at the date of the sale ; she also claimed possession and an injunction.

The appellant relied upon a purchase from the judgment debtor on July 15, 1907. The property had been attached on July 16, 1907, in execution of a decree obtained in 1901 against Chhatrapat Singh, the respondent being the decree-holder and, by leave of the Court, the auction purchaser. The property had been attached by the same decree-holder in 1902 under a decree obtained against Chhatrapat Singh in 1896. The facts as to the attachments appear fully from the judgment of their Lordships. Chhatrapat Singh did not appear in the proceedings.

The respondent by his written statement pleaded (inter alia) that the alleged purchase by the appellant was fraudulent and collusive, and relied further on the attachment in 1902.

Issues were framed of which the following only were material to the appeal (3.) Is the alleged transfer made to the plaintiff for con sideration and bona fide and a valid transaction, and does it in any way affect the defendants title ? (4.) Has the transfer been made during the subsistence of an attachment and for the purpose of defrauding creditors ?

The Subordinate Judge, upon a consideration of the evidence, found that there was good consideration for the transfer and that a fair value had been given for the property. He further held that it had not been proved that the properties were under an earlier attachment. He accordingly made a decree in the appellants favour.

Upon appeal the High Court reversed the decision. The learned judges found that the transfers to the appellant were antedated and that the whole transaction was a fraud. In view of these findings they found it unnecessary to consider whether the properties were under attachment at the date of the sale to the appellant.

1916. Nov. 10, 13, 14, 16. The arguments upon the appeal were addressed chiefly to the facts ; only those upon the right of the respondents in law under the attachment of 1902 are reported.

Upjohn, K.C., and Sir W. Garth, for the appellant.

De Gruyther, K.C., and Dube, for the respondent. The attachment of 1902 was subsisting at the date of the transfers to the appellant. Under s. 276 of the Code of Civil Procedure, 1882, the transfers to the appellant were void against all claims enforceable under that attachment. The respondents claim under the decree of 1896 was enforceable against the proceeds of sale under s. 295 of the Code ; the transfers were therefore void under s. 276. This is the true interpretation of ss. 276 and 295; it is now embodied in s. 64 of the Code of Civil Procedure, 1908 Sorabji v. Govind Ramji. (( 1891) I. L. R. 16 Bomb. 91, 95.) It was proved that the respondent had applied for a rateable distribution of the proceeds of the sale under s. 295. It is true that reliance was not placed upon this argument before the High Court; it was, however, raised in the grounds of appeal to that Court and by the respondents case in the present appeal; it is therefore open to the respondent Maharani Beni Koeri v. Dudh Nath Roy. (( 1899) L. R. 26 Ind. Ap. 216, 221.)

Upjohn, K.C., in reply. The auction sale at which the respondent purchased was under the execution proceedings of 1907, not under those of 1902, and the attachment in 1907 was admittedly after the transfers to the appellant. The attachment referred to in s. 276 is the attachment in the execution proceedings in which it is ordered. Sect. 295 has no application, since the attachment in 1907 was not operative. In any view the execution and attachment of 1902 had been abandoned before 1907.

Dec. 11. The judgment of their Lordships