JUDGMENT
Alfred Henry Lionel Leach, C.J.
1. 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.
2. In 1927 one Chalasani Anjaneyalu filed a suit in the Court of the Subordinate Judge of Masulinatam against two defendants, named Lakshminarayana 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 the 16th April, 1930, Lakshminarayana transferred his decree for costs to the appellant. Chalasani Ramayya filed E.P. No. 42 of 1932 to enforce payment of the costs decreed to him and in these proceedings attached on the 22nd July, 1932, immovable properties belonging to the judgment-debtor. On the 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 21, Rule 89, and on the 29th July, 1933, the sale was set aside under Order 21, Rule 92.
3. On the 1st March, 1933, the appellant filed E.P. 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 the 1st April, 1933, the Subordinate Judge passed an order recognising 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 the 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 the 7th December, 1936, he passed a similar order to the one which he had passed on the 1st April, 1933.
4. On the 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 the 30th June, 1933, but was discharged on the 31st October, 1935.
5. On the 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 the 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 the 10th March, 1934, Namayya filed a petition under Order 21, Rule 58, objecting to the attachment which had been effected by the appellant on the properties of the judgment-debtor on the 30th June, 1933. Namayya’s petition was dismissed and accordingly he brought O.S. No. 128 of 1935 in the District Munsiff’s Court of Gudivada under Order 21, Rule 61, to establish the right which he claimed. It is out of this suit that L.P.A. No. 15 of 1941 arises. The attachment effected by the appellant on the 30th June, 1933, caused Sowbhagyamma also to file a petition of objection. This was likewise dismissed and consequently she filed O.S. No. 129 of 1935, which has given rise to L.P.A. No. 16 of 1941.
6. The two suits were tried together. The question at issue was whether the alienations were void under Section 64 of the Civil Procedure Code. The appellant, who was the 1st 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 the 22nd July, 1932, they were void as against him, he being entitled to rateable distribution as the result of his application of the 1st March, 1933. He could not rely on the order of attachment made on his application of the 23rd June, 1933, as that had been passed after the alienations, and moreover the attachment had been discharged. The District Munsiff 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 Munsiff 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 Code of Civil Procedure. The basis of his decision was that as the sale had been set aside under Order 21, Rules 89 and 92, the appellant could not claim rateable distribution because there was nothing to distribute.
7. 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.
8. 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 jndgment-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 purposes 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 Tinder Section 73 for rateable distribution of the assets realised in the execution proceedings instituted by the first decree-holder and when he applies before the assets are realised, 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 (1940) 1 M.L.R. 482 : I.L.R. (1940) Mad. 526 (F.B.) 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.
9. 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 (1911) I.L.R. 35 Bom. 516. 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.
10. As we consider that the learned Judge was right in holding that Section 64 did not apply we dismiss the appeals with costs.
