A person acquiring an interest in the judgment-debtor's property after attachment and before sale is entitled to apply under Rule 89 for setting aside the sale, as they should not be in a worse position than the judgment-debtor himself.

Devadoss, J.

1. The only point in this appeal is whether a person who obtains a mortgage of the judgcent-debtors property after the date of attachment and before the date of sale is entitled to apply under Order 21, Rule 89 for setting aside the sale. The learned DistrictJudge held that he could not, relying upon a decision of Mr. Justice Odgers in Subba Reddi v. Jayaramayya (1923) 17 LW 680. It was held in that case that by virtue of Section 64, Civil Procedure Code, any transfer of property attached was void and therefore the person who acquired a title after attachment had no locus standi to apply under Rule 89. With very great respect we are unable to agree with Odgers, J. Section 64 makes any private transfer of property or delivery of property attached or any interest therein void against all claims enforceable under the attachment. Where a decree-holder attaches the property of his judgment-debtor any transfer after the date of attachment is void against him. He could ignore such transfer and bring the property to sale as if there was no transaction in respect of the property. If the transferee or the mortgagee of the judgment-debtors property pays off the whole of the decree amount the attachment will be raised. Under Order 21, Rule 55, Where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court or satisfaction of the decree is otherwise made through the Court or certified to the Court... the attachment shall be deemed to be withdrawn.

2. Under Rule 69, Clause 3, Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into Court which ordered the sale.

3. This rule enables the judgment-debtor to pay the decree amount and costs into Court and avert the sale and Rule 55 says that if the amount of the decree and costs and charges are paid, the attachment shall be deemed to be withdrawn. The result of these two rules is that as soon as the whole of the decree amount and costs and charges are paid into Court not only the sale is stopped but the attachment shall be deemed to be withdrawn. Can it be said that a person who buys the property of the judgment-debtor or who acquires a title in the property after attachment and before sale is in a worse position than the judgment-debtor himself? To hold that there is a distinction between the case of a judgment-debtor and that of a person acquiring interest from him with regard to Rules 55 and 69 would be to make the latter to pay the decree amount and costs and charges in, the name of the judgment-debtor. We do not think that the Legislature intended to make any such distinction between the judgment-debtor and a person who acquires an interest in the judgment-debtors property after attachment and before sale.

4. The explanation to Section 64 relied upon for the contention that Rule 89 does not apply to a person who acquires any interest in the judgment-debtors property after attachment and before sale, is as follows:

For the purpose of this section claims enforceable under an attachment include claims for the rateable distribution of assets.

5. The explanation is to be considered with regard to the state of the law at the time when it was enacted, and cannot be held to control the clear provisions of Rule 89. If the Legislature intended that when an attachment of immoveable property is made and the decree-holders who apply for rateable distribution should have the benefit of such attachment, and that the transferee from the judgment-debtor should not by paying off the decree-holder attaching his property release the property from attachment except by paying in full the amount due to all the decree-holders who have applied for rateable distribution, it should have said so in clear terms. As observed by Kumaraswami S