Kailas Nath Dutt vs Ramdhan Mitter

Loch, J.—It appears that the property in question in the suit had been attached in execution of a decree for about rupees 50, and the day fixed for the sale was the 15th July 1865. Previously to the day of sale the debtor had sold the property to the plaintiff in this case, and from the sale proceeds paid the whole amount for which the property had been attached. It is clear, therefore, that the whole of the decree-holder''s decree, for which the attachment was taken out, had been satisfied, and the decree-holder took the money; and therefore it appears to me that he could not object to the sale which had been made, nor ask the Court to continue the attachment on account of other sums which might fall due on his kistbandi. And though the Moonsiff did accede to his request to continue the attachment, yet, as the sum for which the attachment; had been made had been realized, the decree of the decree-holder mast be considered to have been satisfied.

I think, therefore, that the judgment of the lower appellate Court should be upheld, and the special appeal dismissed with costs.

Machpherson, J.

I also would affirm the decision of the lower appellate Court, and with costs. I think that the Judge was right in his interpretation of the decision of the Full Bench in the case of Anand Lal Das v. Radhamohan Saha 2 B.L.R. (F.B.) 49, and that that decision does support the principle on which the Judge has acted. The Pull Bench held substantially that an attachment is only for the purpose of levying the money due under the particular decree," under which the attachment is made, and that the object of section 240 of CPC is to secure the execution of the decree, and to prevent the attachment from being rendered worthless.

Further, I think that if the debt, to recover which an attachment has been made, is satisfied, a subsequent alienation of the property attached is not void, merely because the attachment has not been formally withdrawn. The learned Chief Justice, in delivering judgment in the case to which I have already referred, says:--"If the attachment is to be held to be a continuing attachment after the decree has been satisfied, merely because the attachment has not been withdrawn, what is to be done if it is reversed either in review or appeal."

In the present instance the only attachment in existence when the alienation took place was one for rupees 50 or 56, the amount which alone was then payable under the decree. That attachment was fully satisfied by the money which was paid into Court, and which was drawn out by the decree holder. The Court afterwards ordered that the attachment on the property was to continue until all the subsequent instalments which should thereafter become payable under the decree should be satisfied. But the Court had no power to make any such order. The right of attachment after judgment exists for the purpose of realizing gums actually due under a decree, and not for that of securing property, so that it may at some future period be made available for the realization of moneys not yet due, but which were to become payable under the decree. As the total amount payable under the decree in the case now before us was payable by instalments, and as all the instalments which had become due, and in respect of which the property was attached, were satisfied when the alienation took place, it appears to me that no order subsequently made by the Court, directing the attachment to remain in force till the remaining instalments should fall due and be paid, could in any way affect the validity of the alienation.