The main legal point established in the judgment is that the rights of a purchaser under a contract of sale of land, though not amounting to an interest in immovable property, possess a fiduciary character and may prevail against claims enforceable under an attachment.

Venkatasubba Rao, J.

1. The question that is raised may be stated thus: The purchase was subsequent to the attachment but the agreement in pursuance of which the purchase was made, was prior to the attachment. Does the purchase prevail or not against the attachment?

2. The suit in question was filed on the 22nd April, 1933, the application for attachment before judgment was made on the 22nd June, the attachment was ordered on the 24th June and effected on the 13th July. On the 20th June, that is, two days prior to the application for attachment, the defendants executed an agreement in favour of the petitioner agreeing to sell him the property. Relying on this agreement, the petitioner put in a claim petition on the 22nd August and the District Munsif, finding the agreement proved, made the following order on 17th October, 1933:

Attachment will continue subject to the rights of the petitioner under the agreement, elated 20th June, 1933.

3. The claimant can take no exception to this order, as it upholds such right as he possessed at the time and it follows that C.R.P. No. 788 of 1934 filed impugning that order fails and it is accordingly dismissed but without costs. It is the second order to which I shall presently refer, that has seriously prejudiced the claimant.

4. To resume the narrative, the price settled for the property was Rs. 1,566, out of which the petitioner paid to the vendors on the date of the agreement Rs. 700. On the 9th November, 1933, the sale was completed, the defendants executing the sale deed on that date. The petitioner then put in a second claim petition on the 19th December depositing into Court Rs. 800, the balance of the price payable, the registration and stamp charges having amounted to Rs. 66. The lower Court made an order disallowing the claim, the correctness of which is questioned in C.R.P. No. 841 of 1934. This second order is, in my opinion, clearly wrong and must be set aside.

5. Under Section 40 of the Transfer of Property Act (as amended by Act of 1929) a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it provides that that obligation may be enforced inter alia against a transferee with notice. Section 91 of the Trusts Act recognises this principle and declares that a transferee with notice of an existing contract, of which specific performance can be enforced, must hold the property for the benefit of the party to the contract, to the extent necessary to give effect to it. Thus it will be seen that a purchaser under a contract of sale of land possesses a well defined right, which though not amounting to an interest in Immovable property, is annexed, in the words of Section 40, to the ownership of such property. Section 54 of the Transfer of Property Act says no doubt that a contract of sale does not create an interest in land, but in virtue of the provisions I have referred to, it creates an obligation of a fiduciary character and is in the nature of a trust. The question then is, whether by reason of the Civil Procedure Code any rights accruing under an attachment can override the right above referred to of a purchaser under a contract of sale. In Venkata Reddi v. Yellappa Chetty (1916) 5 L.W. 234, A and B entered into a contract that Bs property should be sold to A. Subsequently C, Bs creditor, attached it in execution of a decree he had obtained against B. Soon after the attachment A had the property duly conveyed to him by B. It was held that A was entitled to the property as against C. The learned Judges, referring to the provisions of the Civil Procedure Code, observe that the question of substantive right cannot be decided by a literal construction of the rules relating to procedure. I am prepared to go further, for it seems to me that there is nothing in the Code which militates against, or is inconsistent with, the right which a purchaser possesses under the substantive law. Order 38, Rule 10 saves expressly