JETHA BHIMA AND CO Vs. LADY JANBAI

JUDGEMENT

(1.) The material facts and date may be very briefly stated.

(2.) In 1894 Balkrishna brought a suit against Mahomed Medhi, obtained a decree for the sum of Rs. 7000, and attached the right, title and interest of his debtor in certain properties, the said right, title and interest being variously computed in the arguments before me at from one to three lacs in the year 1896. Shortly after that attachment, the judgment-debtor Mahomed Medhi assigned the whole of his right, title and interest to the defendant in this suit Lady Janbai. I may neglect the decree in attachment of Moti Gulabdas, which attachment was subsequent to the private assignment to the defendant. In 1898 the present plaintiff brought a suit and obtained a decree against his debtor Mahomed Medhi. In 1899 Mahomed Medhi took the benefit of the Insolvency Act, and his insolvency with a short break, which is not material to any point or argument in this case, continued until Balkrishna s attachment was finally raised in the year 1907 and indeed is still subsisting. In 1904 the present plaintiff levied an attachment on the property already attached by, and still lying under the attachment of, Balkrishna. After Balkrishna s debt had been paid off and his attachment raised, Lady Janbai applied to the Judge in Chambers and got the present plaintiff s attachment raised in 1910. The plaintiff has, therefore, been obliged to bring this suit to have it declared that the particular property upon which his attachment had been placed is the property of his judgment-debtor, and is, therefore, still liable to attachment.

(3.) It is quite clear upon this short statement of facts that unless the assignment of 1896 to the defendant Lady Janbai is void under Section 64 of the Civil Procedure Code, the plaintiff has no case, for if he wished to impeach that assignment upon any other ground, it is clear that he would be now time-barred. The question then is whether in the facts and events that have happened the private assignment of 1896 is void against the plaintiffs attachment of 1904, because that latter attachment is a claim enforceable under Balkrishna s attachment of 1896. It will be convenient to leave aside for a moment the complication introduced by the insolvency and to deal with the rights of the parties in this suit as though no insolvency had occurred.