Tincowri Rai vs Sri Rammanik and Another

Sir Barnes Peacock Kt., C.J.—It appears to me that an attachment under the sections which authorize attachment before judgment, commencing with section 81 of the Code of Civil Procedure, is not an attachment within the meaning of section 270, and that the party who attaches property before judgment, if he wishes to avail himself of that property in satisfaction of his decree, must proceed under Chapter IV for the execution of his decree against the property. I have very little to add to what was stated by Mr. Justice Mitter when referring this case; but it appears to me that property attached prior to decree is not, immediately upon the party''s obtaining a decree, attached under that decree. The defendant, whose property is attached before judgment, has a right at any time to have that attachment withdrawn upon his giving security to perform the decree. Suppose a plaintiff who has obtained an attachment prior to decree, subsequently obtains a decree, and he lies by and does nothing under his decree; and suppose on the expiration of two years and 360 days from the date of the decree, the defendant comes in and gives security to perform the decree u/s 87 I apprehend he would have a right to have the attachment withdrawn, and the withdrawal of the attachment at the instigation of the defendant would not be a proceeding by the plaintiff to obtain execution of his decree. If a plaintiff, one year after the attachment has been withdrawn, applied for execution of his decree, which he had obtained two years and 360 days before the attachment was removed, I apprehend he would be barred by the Statute of Limitations, because he had taken no proceeding to obtain execution of his decree within three years from the time of his obtaining the decree, and he could not say that the property, which he had attached prior to decree, was, during the whole of the two years and 360 days, property which was attached in execution of his decree.

Again, if the word attached in section 270 applies to attachment prior to decree, section 89 of the CPC might be altogether nullified. Suppose A gets a decree on the 1st of January, and attaches property in execution of his decree on the same day. According to section 89 he has a right to do so, and his attachment in execution of his decree would prevail over the attachment of any other creditor who might have an attachment prior to decree. It appears to me that the word attached in section 270 means attached in execution of a decree within the meaning of Chapter IV of the Code, and that the words in all cases of attachment under the preceding sections," in section 242, have reference to the preceding sections in Chapter IV relating to execution of decrees, and not to the preceding attachment u/s 81 and the following sections of the Act, between which and the sections relating to the execution of decrees, there are various provisions relating to the trial of the suit, and other matters not relating in any way to the execution of decrees.

I am of opinion that in the present case both parties having obtained their decrees at the same time, and having attached the property at the same time, were equitably entitled to have the proceeds of the execution divided between them, and that the party who obtained an attachment prior to decree was not, in consequence of his having so done, entitled to priority. If we were to hold that he was entitled to priority because he obtained an attachment prior to decree, we should substantially hold that a creditor might obtain priority when a fraudulent debtor was removing his property out of the jurisdiction of the Court, which he could not have obtained if the debtor had been honest and had not endeavoured be evade the law.

The decision in the execution department was correct, and consequently the decree in the regular suit, reversing that decision, was erroneous, and ought to be reversed. The decision of the lower Court is accordingly reversed with all costs.

I may add that this decision is quite in accordance with the decision in Pitumber Mundle v. Gocooldoss Soonderjee 1 I.J.N.S. 327, and the decision in Gamble v. Bholagir 2 B.H.C.R.A.C. 146 is not at all inconsistent with the case referred to, in which that Court merely held that a bailiff who had attached property prior to decree, and had got it into his possession, was not necessarily bound to seize it again under attachment in execution of decree.

Kemp and Mitter, JJ.

Norman, J.

The question is whether the plaintiff is entitled to priority under the 270th section as having been the first attaching-creditor.

The question is simply, was he the person on whose application the "property was first attached;" because, if so, the 270th section gives him priority. The section is not one of those of the group in Chapter IV which relate to attachments after decree, I see nothing to limit the word "attached" to an attachment after decree: the language is perfectly general. An attachment is not the less an attachment because it is before judgment. It is true that section 89 provides that attachments before judgment shall not affect the rights of persons not parties to the suit." But the attachment u/s 84 is to be in operation till further order, that is, not only before, but after, judgment. The 89th section goes on to provide that the attachment before judgment is not to bar any person holding a decree against the defendant from applying for the sale of the property in execution of the decree. The right to apply for the sale of property in execution of a decree, is a right which is possessed not only by a decree-holder who is in the position of the first attaching-creditor, but by any decree-holder who has attached after judgment.

It seems to me that if there are two creditors, one of whom diligently pursuing his remedies finds out that the debtor is absconding, discovers property which the debtor is concealing, and procures such property, to an extent sufficient to satisfy his claim in the whole or in part, to be attached, who probably incurs not only the costs of the attachment, but the risk of a contest as to the right to attach the property with claimants who may come in u/s 246, such a creditor must, in common fairness, upon the principles on which Courts of Justice favour vigilant creditors, be entitled to priority over one who has taken no such precautions, and incurred no each risks. Though not without considerable diffidence as to the correctness of my view, because I have been convinced that some of the grounds on which I then relied are untenable, I retain the opinion which I expressed in Raj Chunder Roy v. Issur Chunder Roy Bourke, 189, that sections 89 and 270 must be read together, and that section 89 deprives the attaching creditor of all advantage over his competitor in the case until after judgment. Until he has obtained judgment, any decree-holder may attach, seize, and sell, notwithstanding any right acquired by him u/s 84. But after judgment, he stands unaffected by the provisions of section 89, except so far as other decree-holders may have previously got priority over him by attaching before be got his decree.

It seems to me that the language of the 270th section admits of this construction, and if so, that we ought to give effect to it. Every argument which can justify the giving to an ordinary first attaching-creditor priority over others, appears to me to apply with infinitely greater force to one who has attached and thereby secured the property of an absconding debtor; and that not necessarily for himself, for if others can attach before he gets judgment, they come in before him.

Macpherson, J.

I am of opinion that a judgment-creditor who has caused the property of his debtor to be attached prior to decree, u/s 84 of the Code of Civil Procedure, must, after decree, attach the property anew before he can proceed against it in execution.

The scope and object of sections 81, 83, and 84 are merely to protect a plaintiff against loss arising from the defendant making away with his property pending the suit. There sections do not ensure to the plaintiffs payment in any event of whatever may be decreed to him : they do so only so far as that is ensured by preventing the defendant from making away with property

Under sections 83 and 84, no attachment is to issue, if the defendant furnishes the Court with proper "security in such sum as may be specified in the order, to produce and place at the disposal of the Court, "when required, the said property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree." If the security is not given, then the property, or so much of it as is sufficient to fulfil the decree," may be attached. The more general words which are used in section 81, security to fulfil any decree that may be passed against him in the suit." are explained and limited by the directions contained in section 83 as to the nature of the security required, viz., "to produce and place at the disposal of the Court, when required, the said property, &c." And the sections so read show clearly that the only object was to prevent property from being improperly made away with, and to protect the plaintiff against loss from that cause. That this is the true construction is proved by section 89, which declared that attachments before judgment shall not affect the rights of persons not parties to the suit," a declaration inconsistent with the idea that the attachment of necessity ensures the property to the person who attaches it, provided only he eventually gets a decree.

Moreover, the attachment is until further order only. But section 78, which refers to the arrest before judgment of a defendant who is about to leave the jurisdiction, enacts that be may be committed to custody until the decision of the suit, or if judgment be given against the defendant, until the execution of the decree." These latter words, or some corresponding words, would naturally have been found in sections 81, 83 and 84, if it had been intended that the attachment of property before judgment should be sufficient for the purposes of the execution of a decree subsequently obtained.

Turning from the construction of these sections to that portion of the Code which relates to "the execution of decrees for money by attachment of property," section 232 declares that if the amount of a decree is to be levied from the defendant''s property, "the Court shall cause the property to be attached in the manner following." The manner following is given in detail in the subsequent sections, throughout which there is nowhere any allusion to attachments, which were issued before judgment, having any operation as attachments in execution of the decree. In section 246, attachments before judgment are mentioned; but; (as clearly appears from section 86) this reference to them relates not to objections to sales in execution, but merely to claims preferred by third parties who say the property is theirs and ought not to have been attached before judgment.

On the whole, a careful consideration of the provisions of Act VIII of 1859 leads me to the conclusion that though an attachment before judgment will remain in force after decree, so as to keep the property in the custody of the Court, the person who attached it, must, if he wishes to proceed against the property in execution of his decree, attach it de novo, proceeding in precisely the same manner as any other person holding a decree against the defendant would have to proceed, if he wished to attach that property.

It almost necessarily follows that I think that the words the parson on whose application such property was attached (in section 270, which stands among the sections as to execution of decrees), refer to attachments after decree only, and not to attachments before judgment. For these reasons I concur in the answer which the learned Chief Justice proposes to give to the questions referred for our opinion.