1. This is an appeal by defendant 1 against a decree passed in the plaintiff's favour declaring that the suit property was not liable to attachment and sale in the execution proceedings started by defendant 1. The facts are shortly these: Defendant 2 agreed to sell the suit property to the plaintiff on 26th November, 1934. The plaintiff then sued for specific performance of the agreement and obtained a decree, in pursuance of which a sale deed was executed in his favour through the Court on 28th March, 1939. In the meanwhile defendant 1, in execution of a decree obtained by him against defendant 2, had attached the suit property on 13th September, 1936. The question was whether the plaintiff got a good title by virtue of his sale deed in spite of the property being attached before the sale deed was passed through Court. The lower appellate Court has held, relying on the decisions, in 41 Bom. L.R 9431 and 23 C.L.J 1152 that the plaintiff acquired a good title notwithstanding the attachment, because the agreement to sell took place before the attachment, which was not therefore effective against the agreement, and, secondly, because the sale through Court was not a private transfer but a transfer through Court, and therefore it did not come within the prohibition of Section 64 of the CPC.
2. In my opinion, that view is correct. It has been held very recently by this Court in 43 Bom. L.R 2063 that an attachment before judgment of property subject to a contract of sale merely gives the attaching creditor a right to the balance of the unpaid purchase money and he is not entitled to bring that property to sale in satisfaction of a decree subsequently obtained by him. The learned advocate on behalf of the appellant seeks to distinguish that case as well as the cases relied upon by the lower appellate Court on the ground that they were all cases of attachment before judgment and were, therefore, governed by the provisions of O. 38, R. 10, while in the present case there was no attachment before judgment and hence that principle would not apply here. In my opinion, however, there is no substance in that argument. It is true that in those cases the attachment was before judgment, but although it is expressly provided in O. 38, R. 10, that an attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, the same principle would apply to an attachment in execution. In 68 M.L.J 674, the attachment was not before judgment but was in execution, and it was held that where the purchase was sub-sequent to the attachment but the agreement in pursuance of which the purchase was made was prior to the attachment, the purchase prevailed against the attachment. The learned Judge observes (p. 70):
Order 38, R. 10 saves expressly in the case of an attachment before judgment, rights existing prior to the attachment of persons not parties to the suit. Though there is no similar provision dealing in terms with attachments in due course of execution, it can hardly be suggested that a different principle applies. Indeed, O. 38. R. 8 specifically provides that claims preferred to property attached before judgment shall be investigated in the same manner as claims to property attached in execution of decrees.
3. The learned Judge came to that conclusion on the provisions of Section 64 of the CPC, as well as Section 40 of the Transfer of Property Act. The principle laid down in O. 38, R. 10, is not thus limited to attachments before judgment. It would apply to all attachments, whether before judgment or in course of execution. Moreover, as held by our High Court in 84 Bom. L.R 1175 if after the attachment the vendee filed a suit for specific performance of the contract and the Court enforced the execution of a conveyance such conveyance would not be a private transfer subject to the provisions of section 64 of the cpc. That being so, the right obtained by the plaintiff under the sale deed would not be void under the attachment.
4. The decree of the lower appellate Court is, therefore, correct and must be confirmed. The appeal is dismissed with costs.
5. Appeal dismissed.