Radha Mohan vs Mt. Wahidan

Wort, J.—The matters before us are first a rule directed against an order of the Munsif allowing the decree-holder, named Radha Mohan, rateable distribution of assets and secondly, an appeal from the order of the District Judge confirming the decision of the Munsif to the effect that a certain attachment was not subsisting and that the execution case should be dismissed on part satisfaction. To understand the matters it is necessary to state the facts.

The decree-holder Radha Mohan, who in this case appears in person and has argued his case in great detail, obtained a decree and took out certain execution proceedings which were known in this case as Execution Case No. 1472 of 1930.

Sometime after the execution proceedings, which I have just mentioned, had been started the same Radha Mohan obtained another decree against the same judgment-debtor in the Court of the Munsif of Allahabad. This was on 15th April 1931. Other execution proceedings were taken out known as Execution Case No. 578 of 1931. In the meantime on 17th December 1930, in pursuance of Execution Case No. 1472 a house, the property of the judgment-debtor, situate on the club road, Gaya, was attached. There were certain proceedings in the Execution Case No. 1472 which I shall hereinafter refer to as the first execution case which it is unnecessary to refer to in detail.

The sale of the house attached was fixed for 16th May 1931. In the meantime two important events happened. One was as early as 29th January 1931, that is, about a little over a month after the house in Gaya had been attached. The same house was sold to Mt. Wahidan, petitioner in the application in revision and respondent in the appeal before us. Again just prior to the date which was fixed for the sale the decree-holder applied for rateable distribution of the assets in Court resulting from the first execution case. This was on 11th May 1931. An order was made on this application of the 11th May that the matter would be considered when the assets came into the hands of the Court.

It is to be noted that, first, the sale to the lady of the attached property was subsequent to the attachment and, secondly, the application for rateable distribution was made also subsequent to the attachment, that is to say, some five months afterwards on 11th May 1931. On the 13th May, some three days before the date of the sale, the lady by her advocate petitioned the Court to accept the decretal amount and costs in the first execution case and to have the property released from attachment. She stated that she had purchased the property and for that reason she desired to deposit the sum named.

By his advocate the decree-holder agreed to this course subject to a payment also of certain costs in a miscellaneous case with which we are not concerned. This was agreed to and these costs were to be ascertained. On the 14th May in the presence of the decree-holder''s advocate it was discovered that no costs had been incurred, Therefore on the 16th May, on the date of the sale, again in the presence of the advocate of the decree-holder the decretal amount with the costs relating thereto were paid into Court and the execution case struck out on full satisfaction and the attachment released.

The sum paid into Court was about Rs. 1,957, but nothing turns on that, excepting to emphasize the fact that this was the full amount under the first decree in the first execution case. Now, the substance of the argument of the appellants is that the Judge in making that order striking out the execution case was wrong in law. Indeed he goes so far as to say that it was without jurisdiction. His contention is that as he had applied for rateable distribution, the sum of Rs. 1,957 was the sum which should be rateably distributed between the two execution cases in which he was the decree-holder and that the sum of Rs. 1,957 if so rateably distributed would be in part satisfaction only of the decrees. The Judge was therefore wrong in making the order that the first decree was fully satisfied.

On behalf of the respondent in the appeal, who is the applicant supporting the rule in the revision case, it is contended in short that whatever may be the rights of the decree-holder he having consented to the order of 16th May 1931, is bound by it. The sale to the Mt. was thus confirmed. Consequently the attachment ceased by reason of the operation of Order 21, Rule 55; being the property of a person other than the judgment-debtor it can neither be attached nor sold. The matter raises a number of questions u/s 64, Civil P.C.S. 73 and Order 21, Rule 55. Section 64, Civil P.C., provides:

that any private transfer or delivery of the property attached or of any interest therein and any payment to the judgement-debtor of any debt, dividend, etc., shall be void as against all claims enforceable under the attachment.

The explanation states that included in claims enforceable under an attachment are claims for the rateable distribution of assets. Mr. Radha Mohan contends that the sale to the lady in January 1931, being after the attachment was void and that when by his pleader in the execution case he consented to the payment into Court by the purchaser the lady, he was not waiving his rights under the second order u/s 73 of the Code, entitling him to rateable distribution. Section 73 provides:

Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distirbuted among all such persons.

From the circumstances of the case on the face of it would appear that in his capacity as the judgment-creditor in the second execution case the conditions of Section 73 have been complied with, with one possible exception, It was faintly argued by Mr. Khurshed Husnain on behalf of the respondents in the appeal that the words "and more persons than one" are to be construed strictly; as the decree-holder in the two execution cases in the case before us was the same person that part of the section is not complied with. There is some authority for this view, but I would hesitate before deciding in favour of this very technical construction of the section. Two authorities have been relied upon in support of the case of the Mt. One is the case before the Judicial Committee of the Privy Council: Mina Kumari Bibi v. Bejoy Singh, 1916 PC 288, the other being a Full Bench decision in Madras: Annamalai Chettiar v. Palamalai Pillai 1918 Mad 127. Before dealing with these decisions it would be as well to analyse the position in which the decree-holder found himself. It is possible on the authorities to take a contrary view, but it is difficult to understand the argument of the appellant that he was by law forced to accept the proposal of the Musammat, made by her petition of the 13th May, that she being the purchaser should be allowed to pay the decretal amount into Court.

To hold that view would appear to me on the face of it to have the effect of repealing Section 64, Civil P.C., as her only interest was her doubtful title to the property by her purchase of January of the same year. I can hardly take a view other than that in January, on the date of the purchase, it was a transfer contrary to the attachment within the meaning of Section 64, although I am aware of the provision of Order 21, Rule 55, which appears to be sufficiently wide to allow the payment under the order to be made by persons other than the judgment-debtor. But the case it seems to me cannot be determined on this point.

In continuation of this part of the argument however reference may be made to Order 21, Rule 69. Then again I find difficulty in holding that the decree-holder would not he entitled to call upon the purchaser to pay the full amount of the purchase money into Court (see Order 21, Rule 83), as this was a sale by the judgment-debtor to a private purchaser. On this point I feel quite satisfied that in law the decree-holder was not bound to accept as a payment into Court a part of the consideration for the sale to the Musammat, and not the whole. This seems to me to be the position on the 13th May when the lady came forward offering to the decretal amount and costs in satisfaction of the decree.

There are a number of points of view from which one can approach the point in dispute in this case, but from whatever point of view the matter is approached the answer, in my judgment, seems to be the same. The question substantially is--what was the effect of the decree-holder consenting to the order which was finally made on 16th May 1931? As I have already stated, Mr. Radha Mohan argues that Rupees 1,957 was an asset which by reason of his application in the latter execution case was distributable between the two decrees, and in furtherance of this argument his contention at one stage of the case was that the expression "charges" in O.21, Rule 55, was to be construed as meaning any subsequent claim which was enforceable under the attachment, that is to say, in this case the decretal amount which was the subject-matter of the second execution case; and that without payment of this sum by the Musammat the Judge had no jurisdiction to strike out the execution case as fully satisfied.

It will be seen by mentioning this argument that I have already stated that from whatever point of view one approaches the case one comes back to the same point, what was the effect of the decree-holder''s agreement to accept the first decretal amount plus the costs in the miscellaneous case? In other words, how can it be said that the larger sum should have been paid into Court when a decree-holder, being the same person in the first execution case as in the application for distribution of assets agreed that that amount should be paid by the Musammat. The case of Annamalai Chettiar v. Palamalai Pillai 1918 Mad 127, it has been argued, concludes the matter, and it would appear from one point of view that the matter decided there was the very same question which we have to determine. The question referred to the Full Beach was: Whether non-attaching decree-holders who have applied for rateable distribution under a subsisting attachment which has since been raised by the satisfaction of the decree or otherwise, are entitled to question a private alienation made during the continuance of such attachment.

It will be seen as I have said that in this question is included the point we have to determine. But again it will be seen that the question submitted to the Full Bench contemplated a non-attaching decree-holder who was a person different from the decree-holder who had attached the property and that of course makes a vast difference and again brings us to the very same point which I have already repeated more than once. If the Full Bench decision is an answer to the question--the answer being that a non-attaching decree-holder cannot question a private alienation--how much more must it be said that a non-attaching decree-holder who has agreed to a private alienation in his capacity of a decree-holder in another execution case is bound by his own agreement.

The facts in the Madras case were these The judgment-debtor who was the 29th defendant in the case was indebted and had a large number of decrees against him. The case was concerned with some of these decrees only. He executed a sale-deed, dated 15th June 1910. An application was subsequently made for attachment when the plaintiff who was the purchaser under the private sale objected. Having a decision against him he commenced the suit.

Although it was clear that the attachment, the application for which I have mentioned, was not subsisting at the time of the sale there was an argument in the case that a previous attachment was already subsisting. That attachment related to another decree in execution, the attachment having taken place some five or six months before the private sale of 15th June 1910. The application for execution was eventually dismissed in March 1910, that is, three months before the private sale.

The contention, in, the case was that the earlier attachment was still subsisting. But either by reason of the fact that that application had been dismissed or that the subsequent application for attachment had been made to a Court other than the Court which would be entitled to distribute the assets it was held that neither availed the person questioning the private Sale. The contention of Mr. Radha Mohan is that although the question submitted to the Full Bench covers the point in dispute in this case, yet the radical difference is that the decretal amount had not been paid into Court. Therefore the Court not being in possession of the assets a material difference exists between that case and the one before us. In discussing the question submitted to the Court reliance was placed upon a decision in Mina Kumari Bibi v. Bejoy Singh 1916 PC 288, a decision of the Judicial Committee of the Privy Council. Before I deal with that case, I may mention one or two observations in the principal judgment delivered by the Full Bench of the Madras High Court.

It was pointed out in the first place that Section 276, Civil P.C. 1882, was wider in its terms than Section 64, of the present Code. Section 276 provided:

When an attachment has been made by actual seizure or by order, etc., any private alienation of the property attached, whether by sale, etc., during the continuance of the attachment, shall be void as against all claims enforceable under the attachment.

The present Section 64 makes alienations of property "against the attachment" void. The view expressed by Kumaraswami Sastriyar, J., was that the explanation to Section 64 was merely legislative sanction of the decision in Sorabi Edulji v. Govind Ramji, (1892) 16 Bom 91, there having been a difference between that case and the case of Manohar Das v. Ram Autar Pande, (1903) 25 All 431, that it did not extend the law excepting to include in claims enforceable under the attachment within the meaning of Section 64 those claims for rateable distribution. The substance of the decision was that not only was a subsequent decree-holder who had applied for rateable distribution not entitled to question, the alienation but that the attaching decree-holder himself was not if it was for the purpose of paying off the decretal amount. From one point of view the decision in Mina Kumari Bibi v. Bejoy Singh 1916 PC 288, in Privy Council was of more importance, although perhaps more limited.

The case rose out of an action for possession, the facts being that the judgment-debtor had three decrees against him. An application was made by the decree-holder for execution of one of the earliest decrees and an order for attachment was made, also an order u/s 274, Civil P.C. of 1882, prohibiting the judgment-debtor from alienating the property. Nothing seems to have been done until some two or three years later when the application for execution was dismissed. Some two years later another application was made for execution of the same decree.

A warrant of attachment appears to have been issued a month later. Another application was made for execution of a later decree and in 1907, attachment was effected. This was in August of 1907. Meanwhile on 15th July 1907, the judgment-debtor had sold the property privately. The question which came before the Courts was--whether the sale to the private purchaser was to be preferred to the purchase in the execution proceedings in which the order for attachment of August 1907, was made. I have left un-mentioned a number of facts which perhaps are not necessary to mention.

The contention was, in the first place, that the earlier attachment to which I have made reference was subsisting at the time of the private sale, and the further contention was that the private sale of 15th July 1907, was antedated. This latter contention was rejected. The earlier point was not specifically decided. Sir Lawrence Jenkins, in delivering the opinion of the Judicial Committee of the Privy Council, lays stress on the fact that although the word "attachment" was used several times in Section 276, the only attachment which would in any way assist the purchaser in the execution sale was the particular attachment which was made in the execution sale at which he was the purchaser.

To use the words of Sir Lawrence Jenkins

it still is the attachment in Execution Case No. 16 of 1907, that is, the only weapon of attack, and it is not made more effective by the earlier attachment in Execution Case No. 8 of 1902.

As the attachment which was "the only weapon of attack," to use the words of Sir Lawrence Jenkins, was made later than the sale to the private purchaser it was held that it was of no assistance to the purchaser in the execution sale and that the private sale is to be preferred to the execution sale. Sir Lawrence Jenkins points out in the course of his opinion that in order to bring Section 295, which is now Section 73, into play, certain conditions are necessary.

One of them is that there should be assets held by the Court; and further he went on to say that it was not shown that there were assets. For the reason which I have indicated that although the Full Bench decision of the Madras case raised the very point which we have to deal with, it does not assist us in this case and, for the reason stated by Sir Lawrence Jenkins, the case of Mina Kumari Bibi v. Bejoy Singh 1916 PC 288, does not assist us, the reason being that in the latter case the relevant attachment was not subsisting at the time of the private sale. Sir Lawrence Jenkins points out, as I have said, that in order to make Section 73 apply, it is necessary that there should be assets in the hands of the Court. It was therefore contended in this case that as there were assets, being Rs. 1,957, the conditions of the section had been complied with.

In this connexion reliance was placed upon the case of Bhatto Singh v. Raghunandan Prasad Singh, 1933 Pat 303, which held that the payment into Court for the purpose of setting aside a sale under Order 21, Rule 89, was "assets distributable." Therefore, payment under Order 21, Rule 55 was "assets distributable."

It is difficult to hold that if payment into. Court under Order 21, Rule 89, is an asset, a payment into Court under Order 21, Rule 55, is not an asset; but I specifically reserve that question, first, by reason of the fact that I think it is unnecessary to decide it in this case, and secondly, because to bold that the payment under Order 21, Rule 55, was an asset distributable amongst decree-holders would raise difficulties which from one point of view are unsurmountable. The slight consideration will show what these difficulties are: Can it be disputed that a judgment-debtor is entitled to pay the decretal amount into Court with costs and charges under Order 21, Rule 55? There is only one answer to that question.

If he pays such sum, which quite clearly he is entitled to, irrespective of any other claims against him or against his property, the section quite clearly states that the attachment ceases and the execution case can be struck out in full satisfaction. If we were to hold that the sum was "assets distributable" then the payment into Court equivalent to the amount of one decree, which payment is distributable amongst a number of decree-holders, results in the decree in relation to which the payment is made being satisfied in part only. Therefore contrary to the order and implication of the rule full satisfaction could not be declared.

I see no answer to this question if reliance is to be placed upon the decision of this Court to which I have just referred. An anomaly appears to exist in this part of the Civil Procedure Code, the only answer to the difficulties appearing to be the decision in Annamalai Chettiar v. Palamalai Pillai 1918 Mad 127, and the case in the Judicial Committee of the Privy Council, the substance of which is that in spite of the provision that an alienation is void its invalidity is limited in the sense that it is void only as against the attachment and again only in the sense in which the purpose of the attachment is obstructed by the alienation. This discussion brings me back to the point from which I started. Assuming that there are differences between the cases relied upon by the respondent and the case before us, they are immaterial for the purpose of deciding this case.

Whether in the circumstances that decree-holders were two different persons--one attaching and the other applying for rateable distribution--the latter could not question a private alienation to which the former had consented, yet in this case where the decree-holders are one and the same person it is impossible to contend that the private alienation is void in the sense that the decree-holder is not in a position in law to consent to it. The argument of the decree-holder here that he was merely considering his rights in the first execution case irrespective of his rights in the second execution case cannot be supported in the light of the orders which were made by the Munsif. On the 13th May, he specifically agreed to the payment by the Musammat of the decretal amount plus the costs in the miscellaneous case, she having stated that she had purchased the property in a private sale. As I have pointed out, he could have objected to this.

He could have demanded payment of the full consideration which was upwards of Rs. 5,000 and it was in his presence or in the presence of his legal adviser that the two subsequent orders were made, the latter of which was to the effect that the decree was fully satisfied and that the attachment was withdrawn. That in my judgment disposes of the case. The order made by the Munsif against which the rule in revision is directed was to the effect that the decree-holder is entitled to rateable distribution. In so far as that purports to set aside the order of the Munsif, dated 16th May 1931, striking out the execution case, it was without jurisdiction. But the substantial question is one which is raised in the appeal, and as Mr. Khurshed Husnain does not press the revisional application I make no order and leave it with the above observation. As regards the appeal, in my judgment, the learned Judge was right. The attachment cannot be considered to be subsisting. Consequently the property now having passed to the Musammat cannot be sold again in execution. The appeal is therefore dismissed with costs.

Fazl Ali, J.

Shortly put the appellant''s contentions are as follows:

The amount deposited in Court by the respondent Wahidunnissa must be regarded as "assets held by the Court" and therefore liable to rateable distribution u/s 73, Civil P.C. That being so, neither the first nor the second decree has been satisfied and u/s 64, Civil P.C., the private sale of the property is invalid as against the claim under both the decrees and the house in question is thus liable to be sold in execution of the decree in execution of which it had been attached. The attachment could not validly terminate under Order 21, Rule 55, as that decree was in fact not satisfied. The expression "amount decreed with costs" as used in Order 21, Rule 55, means not only the amount of the decree in execution of which a certain property has been attached, but also the amounts of such other decrees as may be under execution in the same Court giving rise to claims u/s 7 3, Civil P.C. These contentions are met with on behalf of the respondent on the following four grounds: (i) It is contended that as the second decree was not in existence at the time when the house in question was purchased by the respondent the private sale though void as against the claim in the previous decree cannot be held to be void as against the subsequent decree-holder.

This argument is sought to be supported by the following observations made by Mookerjee, Ag. C.J., in Barendra Nath v. Martin Co. 1921 Cal 301:

The expression ''claims enforceable under the attachment'' taken apart from the explanation unquestionably refers to a claim in existence as such on the date of alienation. The explanation no doubt, enlarges the scope of the words by the inclusion of claims for the rateable distribution of assets, but clearly such claims must possess the same quality as the claims primarily enforceable under the attachment, that is, actual existence at the time of alienation. In our opinion it would be unreasonable to hold that claims of the latter description include claims that might possibly arise in the future.

(ii) It is next contended that the present case is entirely covered by the Full Bench decision of the Madras High Court in Annamalai Chettiar v. Palamalai Pillai 1918 Mad 127. In that case the question which was referred to the Full Bench was formulated in these words:

Whether non-attaching decree-holders who had applied for rateable distribution under a subsisting attachment which has since been raised by the satisfaction of the decree or otherwise are entitled to question the private alienation during the continuance of such attachment.

This question was answered in the negative by all the learned Judges of the Madras High Court who composed the Full Bench. One of them Sir John Wallis expressed himself as follows:

Section 64 of the present Code affords no greater protection to the attaching decree-holder than Section 276 of the old Code and if he cannot protect himself against an alienation after an Attachment unless the attached property is brought to sell in execution of the decree in respect of which the attachment was made, it necessarily follows that other decree-holders who have applied for execution cannot be in any better position. It may even be said that as regards the other decree-holders the language used in the body of Section 64 is, if anything less favourable than the language of Section 276, because it only renders void as against the claimant''s specified alienations which are ''contrary to such attachment'' and alienations by means of which the decree in execution of which the attachment was made is satisfied, can scarcely be regarded as an alienation contrary to the attachment.

Another learned Judge in delivering his opinion made the following observations:

If the legislature intended the attachment to enure for the benefit of all persons entitled to rateable distribution it would similarly have declared that the attachment should cease only on all their claims being satisfied or that the cesser of the attachment should be without prejudice to their rights. That the difficulty created by Rules 55 and 57, Order 21 is real will be clear from the fact that the existence of a valid attachment is necessary in order to bring the property to sale and if the attachment ceases when the decree-holder who attaches is paid off a re-attachment will be necessary which will be of no avail if it is subsequent to the alienation: see Gobind Singh v. Jalim Singh, (1884) 6 All 38 and Mina Kumari Bibi v. Bejoy Singh, 1916 PC 288.

Now, what the respondents contend relying on the observations of Sir John Wallis, is that only in those cases where the attaching creditor follows up the attachment by bringing the attached property to sale, a question will arise as to whether the title created by the execution sell will or will not prevail as against the title of the private purchaser from the judgment-debtor. If however before the attached property is brought to sale, the attachment for some reason or other comes to an end or is withdrawn neither the attaching decree-holder nor any other decree-holder who claims rateable distribution u/s 73, Civil P.C., can question the private alienation. It is pointed out that the second decree-holder who claims rateable distribution u/s 73 is under the existing law entirely at the mercy of the first decree-holder or the decree-holder who has already attached the property. For example, if the latter accepts the decretal amount from the private purchaser of the attached property out of Court and then certifies satisfaction in Court or allows the execution to be dismissed for default, the second decree-holder cannot question the private alienation, nor can he claim any rateable distribution of the amount received out of Court by the first decree-holder.

Upon the same analogy it is argued that once the attachment terminates by reason of the entire decretal amount due under the first decree being deposited in Court under Order 21, Rule 55, the alienation at once becomes binding on the second decree-holder who has not attached the property, but who has merely claimed rateable distribution u/s 73. It is urged that the decretal amount referred to in Order 21, Rule 55, means the amount of the particular decree which is in execution and in execution of which the property is attached and cannot mean the amount due under all the decrees that may be under execution at the same time in the same Court.

It is further contended that on a correct reading of Section 64 it would appear that the attaching creditor is in a far more advantageous position than a creditor who has not attached the property and who claims merely the benefit of Section 73. The former it is said, has a right to proceed to sell the property ignoring the private alienation, but so far as the latter is concerned the alienation must be held to be good as against him so long as his right to the assets in the hands of the Court is not prejudiced provided that such assets do come into the hands of the Court.

(3) The next contention put forward on behalf of the respondent is that if the appellant questions the validity of the sale in favour of Mt. Wahidunnissa the amount paid by her in Court cannot be regarded as assets and the second decree-holder cannot be entitled to the benefit of Section 73 of the Code.

(4) Lastly, it is pointed out that the appellant by his conduct both on the 13th and on the 16th May, must be deemed to have waived the benefit of Section 64 and therefore he cannot question the purchase of the house by the respondent. I will only briefly deal with the first two grounds because in my opinion the last two grounds are sufficient to dispose of this appeal.

The observations made by Mookerjee, J., in Barendra Nath v. Martin Co., 1921 Cal 301, have been dissented from in Siva Pratapa Bhattadu v. A.E.L. Mission Rajahmundry 1926 Mad 307, and do not appear to me to be quite in consonance with the decision in Sorabi Edulji v. Govind Ramji, (1892) 16 Bom 91, or with the prior decision of the Calcutta High Court in Kali Kumar v. Kali Prasanna, 1917 Cal 561. There is much however in the decision of the Privy Council in Mina Kumari Bibi v. Bejoy Singh, 1916 PC 288 and Annamalai Chettiar v. Palamalai Pillai 1918 Mad 127, which support the respondent''s view. On principle there should be no difference between payment of the decretal amount to the attaching creditor out of Court and its being paid into Court to his credit. I do not see why in the former case the alienation should be held to be binding upon the second decree-holder who claims the benefit of Section 73, Civil P.C., and in the latter case should be held to be void against him. At the same time it appears to me that by extending the principle laid down in Annamalai Chettiar v. Palamalai Pillai 1918 Mad 127, we would be drifting further and further away from the object which the legislature had in view in enacting Section 73, Civil P.C.

The object clearly was to avoid multiplicity of attachment and execution proceedings and I think that the difficulties which often arise in the interpretation of Section 64 and Order 21, Rule 55, will be avoided if it is provided in clear terms: (1) that no private alienation would bind either the attaching creditor or any other decree-holder who applies for execution of his decree while the attachment still subsists; (2) that the expression "amount decreed" as used in Order 21, Rule 55, shall include the amount of any decree or decrees passed against the same judgment-debtor in respect of which a valid claim for rateable distribution of the assets may have been made u/s 73, Civil P.C.

It is however unnecessary to pursue the matter any further because as I have already indicated this appeal can in my opinion be disposed of on the other two grounds referred to by me. The plain dictionary meaning of the word "assets" is the entire property of a person or company which may be so liable for his or their debts. In the majority of cases decided u/s 73, Civil P.C., the word "assets" has been used to mean any fund in the hands of a Court which could be applied by the Court for the payment of a judgment-debtor''s debt. It follows therefore that a fund or a sum of money cannot be regarded as assets unless it is in some sense the property of the judgment-debtor and can therefore be legitimately applied to the payment of his debt.

It is clear that any money which belongs to a stranger or any money paid into Court by a third party under a misapprehension cannot be described as assets. The question therefore is whether the money deposited by Mt. Wahidunnissa in Court can be regarded as assets held by the Court executing the decree in Execution Case No. 1472 of 1930. If the appellants insist on regarding the sale in favour of Mt. Wahidunnissa as void, I am doubtful whether the money realized by means of a sale which is void in the eye of law can be regarded as the judgment-debtor''s assets. It is well settled that when no assets are held by the Court the holder of the second decree is not entitled to rateable distribution. Here however the appellant who is the holder of both the decrees has been contending all along that the sum of, money deposited by Mt. Wahidunnissa must be treated as assets and that it should be applied to the satisfaction of the two decrees held by him.

As far as I can see he could possibly take up this position only if he did not question the validity of the sale in favour of the respondent for it seems to me that he cannot both approbate and reprobate it. This at once brings me to the consideration of the conduct of the appellant at the time the respondent offered to deposit the money in satisfaction of the first decree in Court. As will appear on a reading of the order-sheet the Court gave full opportunity to the appellant to raise any objections that he could raise in law to the respondents depositing the money, and his pleader was accordingly heard on the subject.

It was open to him. to show that the respondent had no locus standi to deposit the money; that the sale was not valid as against him; that he meant thereafter to question the sale; that there being already his application for rateable distribution before the Court in Execution Case No. 578 of l930, the whole of the first decree could not be satisfied by the amount and so the house in question was still liable to be sold. None of these objections however appear to have been raised on his behalf.

On the other hand, his pleader clearly intimated to the Court that he would have no objection to the money being received by the Court, if certain costs incurred by the decree-holder in a miscellaneous proceeding was also paid by the appellant. It was subsequently ascertained in the presence of the decree-holder''s pleader that no costs had been incurred by the decree-holder and Mt. Wahidunnissa was therefore directed to pay into Court the decretal amount with costs and interest. This amount was paid into the treasury on the 15th May. The order-sheet shows that on the 16th May when the Execution Case No. 1472 was dismissed the decree-holder raised no objection.

It appears to me that in these circum stances the appellant must be deemed by his conduct to have waived the benefit of Section 64, even if he was entitled to any such benefit, and to have agreed to receive the decretal amount due in Execution Case No. 1472 in satisfaction of the decree for which the execution had been taken out. That being so, the attachment must necessarily be deemed to have terminated and the sale in favour of the respondent must be held to be valid. In my opinion therefore the order of the Court below that the house in question cannot be sold in execution of the appellant''s decree is correct and this appeal must be dismissed with costs.