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1939 Supreme(Mad) 404
IN THE HIGH COURT OF MADRAS FULL BENCH
Alfred Henry Lionel Leach, C.J.
B. Nana Rao
Versus
M.U. Arunachalam Chettiar and Ors.
Decided On : 24.11.1939
Headnote:
Whether 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?
Fact of the Case:
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 5th 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 7th 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 Chettys 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 15th 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 15th 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 Chettys application for attachment was granted on the 10th June, 1926 and the attachment was effected on the 29th of that month. On the 12th 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 16th December, 1926, the date on which the property was sold under Pedda Sambayya Chettys 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 Chettys execution proceedings is the appellant in the appeal in which this reference has been made.
Finding of the Court:
The answer to the question referred is in the affirmative.
Issues: Whether the mortgage executed by the judgment-debtors was, in the circumstances mentioned, valid as against the appellant who had purchased the property in Court sale in course of execution (E.P. No. 322 of 1926).
Ratio Decidendi: The Explanation to Section 64 of the Code of Civil Procedure, 1908, has extended the protection of the section to bare claims for rateable distribution also, by the inclusive definition newly introduced by it. The claim for rateable distribution simpliciter without the support pi an anterior attachment are now as powerful and potent as claims enforceable under an attachment. The qualifications considered essential by all other Courts except Bombay, namely, a prior attachment was dropped as I think deliberately, in view of what had been said in Durga Churn Rai Chowdhury v. Manmohini Dasi (1935) 33 A.L.J. 4 (1888)15 Cal. 771. That a change was intended is perfectly plain to my mind, from a further circumstance. The word include used in the explanation, has the legal significance attached to it by Lord Esher, M.R., in Rodger v. Harrison (1893) 1 Q.B.D. 161: “The word interpreted (in the present case claims enforceable under an attachment) “has its ordinary meaning. That meaning it still has in the Act. But then there are other meanings that the Legislature wishes it to have in the Act. So the definition is used to enlarge the meaning of the term beyond its ordinary meaning and make it include matters which the ordinary meaning would not include. But this enlargement of meaning is confined to the matters expressly mentioned in such definition.”
Final Decision: The second appeal was dismissed with costs.
Alfred Henry Lionel Leach, C.J.
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 5th 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 7th 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 Chettys 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 15th 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 15th 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 Chettys application for attachment was granted on the 10th June, 1926 and the attachment was effected on the 29th of that month. On the 12th 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 16th December, 1926, the date on which the property was sold under Pedda Sambayya Chettys 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 Chettys execution proceedings is the appellant in the appeal in which this reference has been made. On the 11th 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 Code of Civil Procedure. The District Munsif relying on the decision in Annamalai Chettiar v. Palanalai Pillai AIR1918Mad127 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 Chettys 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 Chettys 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 cons
