Sir Lionel Leach, C.J:— These appeals have been heard together. The facts are the same in each case and they both raise the same question of law, namely, whether section 64 of, the Code of Civil Procedure applies in the circumstances. Happell, J. who heard the second appeals out of which these appeals arise was of the opinion that it did not. Being appeals filed under clause 15 of the Letters Patent we are only concerned with the legal question.
In 1927 one Chalasani Anjaneyulu filed a suit in the Court of the Subordinate Judge of Masulipatam against two defendants, named Lakshminarayaha and Chalasani Ramayya respectively. The plaintiff failed to establish his case and consequently his suit was dismissed with costs, each defendant being given one set. On 16th April 1930 Lakshminarayana transferred his decree for costs to the appellant. Chalasani Ramayya filed Execution Petition No. 42 of 1932 to enforce payment of the costs decreed to him and in these proceedings attached on 22nd July 1932 immovable properties belonging to the judgment-debtor. On 20th March 1933 the Court sold by public auction the properties attached, but before the sale was confirmed the judgment-debtor deposited the amount of the decree plus the solatium of five per cent required by Order XXI, rule 89, and on 29th July 1933 the sale was set aside under Order XXI, rule 92.
On 1st March 1933 the appellant filed Execution Petition No. 32 of 1933 to enforce payment of the amount due from the judgment-debtor to him as the assignee of Lakshminarayana's decree. He asked for the attachment of the properties which Chalasani Ramayya had attached and for rateable distribution. On 1st April 1933 the Subordinate Judge passed an order recognizing the appellant as the assignee of Lakshminarayana's decree and his right to rateable distribution, but made no order of attachment on this petition. The judgment-debtor had objected to the appellant being permitted to proceed in execution because he challenged the validity of the assignment of the decree. As the result of the order passed by the Subordinate Judge on 1st April 1933 the judgment-debtor appealed to this Court. His appeal was allowed and the case remanded to the Subordinate Judge with instructions to hear the judgment-debtor's Case on its merits. This the Subordinate Judge did and came to the conclusion that the judgment-debtor's opposition was groundless. The result was that on 7th December 1936 he passed a similar order to the one which he had passed on 1st April 1933.
On 23rd June 1933 the appellant filed another application asking for the attachment of the properties belonging to the judgment-debtor. An order of attachment was passed on 30th June 19334 but was discharged on 31st October 1935.
On 12th May 1933, that is during the attachment Effected by Chalasani Ramayya of the judgment-debtor's properties, the judgment-debtor sold a portion of them to one Namayya. This sale provided him with the money to pay into Court the amount due to Chalasani Ramayya under his decree, plus the solatium payable to the auction purchaser. The judgment-debtor had previously sold another portion of the attached properties to a person named Sundaramma. That sale took place on 30th July 1932, eight days after Chalasani Ramayya had obtained the order of attachment. Sundaramma bequeathed the property bought by, her to one Sowbhagyamma under a will dated 1st April 1934. On 10th March 1934 Namayya filed a petition under Order XXI, rule 58, objecting to the attachment which had been effected by the appellant on the properties of the judgment-debtor on 30th June 1933. Namayya's petition was dismissed and accordingly he brought Original Suit No. 128 of 1935 in the District Munsif's Court of Gudivada under Order XXI, rule 61, to establish the right which he claimed. It is out of this suit that Letters Patent Appeal No. 15 of 1941 arises. The attachment effected by the appellant on 30th June 1938 caused Sowbhagyamma also to file a petition of objection. This was likewise, dismissed and consequently she filed Original Suit No. 129 of 1935, which has given rise to Letters Patent Appeal No. 16 of 1941.
The two suits were tried together. The question at issue was whether the alienations were void under section 64 of the Code of Civil Procedure. The appellant, who was the first defendant, claimed that section 64 applied and as the alienations in favour of the plaintiffs had been made after the attachment effected by Chalasani Ramayya on 22nd July 1932 they were void as against him, he being entitled to rateable distribution as the result of his application of 1st March 1933. He could not rely on the order of attachment made on his application of 23rd June 1933 as that had been passed after the alienations, and moreover the attachment had been discharged. The District Munsif held that as the result of Chalasani Ramayya's attachment the alienations were void under section 64 and consequently dismissed the two suits. Appeals followed to the District Judge of Kistna. The District Judge agreed with the District Munsif and this led to the plaintiffs appealing to this Court. They were heard by Happell, J. who allowed them, as he considered that the alienations were not void under section 64 of, the Civil Procedure Code. The basis of his decision was that as the sale had been set aside under Order XXI, rules 89 and 92, the appellant could not claim rateable distribution because there was nothing to distribute.
It cannot be denied that as the result of the setting aside of the sale which took place on Chalasani Ramayya's petition the attachment came to an end. The decree-holder got the decretal amount which the judgment-debtor had paid into Court, the auction-purchaser received back the money which he had paid into the Court as the purchase consideration, plus the solatium of five per cent and the judgment-debtor remained in possession of his property free from any liability to Chalasani Ramayya.
Section 64 of the Code of Civil Procedure states:
“Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Explanation.—For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.”
When one decree-holder has attached property belonging to his judgment-debtor in execution of his decree another person holding a decree against the same judgment-debtor can apply to the Court under section 73 for rateable distribution of the assets realized in the execution proceedings instituted by the first decree-holder and when he applies before the assets are realized, that is brought into Court, he is entitled to rateable distribution. Section 64 and section 73 allow the second decree-holder to come in on the same terms as the first decree-holder provided he moves the Court in time. He cannot apply for rateable distribution after the assets have been realized; see Nana Rao v. Arunachalam Chettiar. This means that any alienation made by the judgment-debtor, after the attachment is void as against a creditor who has applied for rateable distribution in time.
The appellant says that, as he applied in time for rateable distribution, the alienations made by the judgment-debtor in favour of the plaintiffs must be deemed to be void under section 64. In our opinion section 64 does not help the appellant. Section 64 does not say that the alienations shall be void absolutely. What it says is that they shall be void as against all claims enforceable under the attachment. When the attachment is set aside by reason of the decree-holder having been paid in full, the attaching decree-holder has no claim against the judgment-debtor and therefore there is no claim enforceable under the attachment. The appellant was not paid and he had a claim against his judgment-debtor, but as the attachment had been set aside it was not a claim which could be enforced under the attachment and unless it was enforceable under the attachment section 64 could not apply. Happell, J. has based his decision on the fact that when the decree-holder was paid and the auction-purchaser withdrew his money from Court there was nothing to distribute. That is true, but we prefer to put it on the ground that the Court was no longer concerned with the alienations in favour of the plaintiffs because these alienations were only void against the appellant under section 64 so long as he had a claim which was enforceable under the attachment. He had no such claim when these suits were brought and the alienations could not be challenged under that section. It follows that we agree with the opinion expressed by the Bombay High Court in Khushalchand v. Nandram Sahebram that the moment the attachment ends all claims which were enforceable under it cease to be enforceable. Whether the alienations can be challenged here on another ground is a different matter. Other issues were raised in the suits and the learned Judge has remanded them for trial on the merits.
As we consider that the learned Judge was right in holding that section 64 did not apply we dismiss the appeals with costs.
G.R