Back
1939 Supreme(Oudh) 41
HIGH COURT OF OUDH
Hamilton, J.
Durga Prasad - Appellant
Versus
Seetla Prasad Tewari - Respondent
Decided On : 23-11-1939
JUDGMENT
Hamilton, J - This is an application in revision against a decision of a Judge of the Small Cause Court. The applicant obtained a decree on 26th May 1936, and on the following day 27th May 1936, applied for attachment of a sum of money standing in deposit in a Bank in the name of his judgment-debtor. The attachment order was passed on 6th July 1936, and in answer to that order the money was actually paid into Court by the Bank on 22nd July 1936. On 11th May 1936, that is to say, before the decree of the applicant, the opposite party had before judgment attached that money in the Bank and it was not till 21st August 1936 that his suit was decreed. On 11th September 1936, he then applied for execution of his decree by calling for the money from the Bank and on the following day he claimed priority. The learned Small Cause Court Judge considered that the opposite party was entitled to priority because his attachment was earlier although it was attachment before judgment only. He held that Order 38, Rule 10 does not apply. It is true that Order 38, Rule 10 states that an attachment before judgment does not bar a person holding a decree from applying for the sale of the property under attachment and in the present case there is no question of sale of property because cash was attached, but I do not see why the principle should not be followed merely because the attached property is cash in one case and something else in the other. Bisheshar Dasa v. Ambika Prasad (1915) 2 A.I.R. All 275 and Profulla Nath v. Asia Khatun A.I.R. 1934 Cal 426 refer to cases of sale of property to which Order 38, Rule 10 applies but S. Cassam v. Abdul Kader A.I.R. 1926 Rang 85 referred to a sum of money, and Order 38, Rule 10 was referred to by way of analogy, I am satisfied therefore that the person who first obtains his attachment cannot claim priority if the attachment is one before judgment. I therefore allow the application and set aside the order of the Court below, with costs and send the case back for further steps.
