Ashworth, J.:— After stating the facts as above, thus continued:—
In this appeal it is submitted that this case was not relevant to the present facts. In that case it was clearly held that what was attached was a right to certain profits which might never become due, whereas in the present case there can be no question that at the date of the attachment there was a certainty that the rent would become due. Reference, however, in that decision was made to the English case of Webb v. Stenton. In that case the Queen's Bench held in effect that a debt involves (a) “an obligation incurred by the debtor, and (b) a liability on the part of the debtor to pay for that obligation at a, certain date. Until the obligation had been fully incurred, there is no debt. “Accruing” did not mean that the obligation was incomplete, but merely that the date for payment had not arrived. “Debitum in presenti, solvendum in futuro” Rent in respect of a period still in existence is thus not a debt at all, as the obligation is not complete.
This decision equally disposes of the argument that this rent could be attached, if not as a debt, still as saleable property, that is to say, “an actionable claim”. An actionable claim is “a claim to a debt, existent, accruing, conditional or contingent”. The last four words do not alter the situation, if there is no debt.
It has been suggested that the “saleable property” is not the rent, but the title to recover it for the period in question. A title (unlike a debt) accrues when the instrument creating it has been executed. But it is not the title that the decree-holder purported to attach. Moreover, an occupancy tenant cannot transfer his title except by a sub-lease for five years (in which case he gets the rent and his landholder is not prejudiced) under sections 23-34 of the Tenancy Act.
For these reasons I hold that the lower appellate court was correct in its decision, and would dismiss the appeal with costs.
Mukerji, J.:— I entirely agree with my learned brother that the word “debts” as used in section 60 of the Code of Civil Procedure must be confined to a debt in the ordinary sense of the word, that is to say, an existing debt. It appears to me that the several articles that have been declared by the opening portion of section 60 as liable to attachment and sale have been given only by way of an illustration. The important words are, “all saleable property, moveable or immoveable, belonging to the judgement-debtor …” these are liable to be attached and sold. It is only by way of illustration that the words, “lands, houses, etc.” have been added. If this view of mine be correct, the word “debts” could have been used only as illustrating what is liable to be attached and sold. A person may be a debtor under a bond, although the money due under the bond does not accrue payable till a future date; for the liability is there to pay. In the present case, it cannot be said that at the date of the attachment the sub-lessee was “in arrear” to the occupancy tenant, the judgement-debtor. If the sub-lessee was not in arrear, it cannot be said that there was a debt due by him to the occupancy tenant. If at the date of the attachment, the sub-lessee was dispossessed, he could not be called upon to pay. His liability was not complete till he had held for the required period.
As regards the question whether the right to recover the rent could or could not be attached and old under the latter portion of section 60 of the Code of Civil Procedure, I need not add anything to what has fallen from my learned brother.
By the Court.— The appeal is dismissed with costs.
Appeal dismissed.