NIYOGI AND STAPLES - (1.)THIS is an appeal by two decree-holders against the order of the Subordinate Judge, First Class, Hoshangabad, passed in execution of a decree, holding that the present appellants, Seth Bansilal and Seth Pannalal, have no right to execute their decree. The appellants Bansilal and Pannalal have obtained a money decree in Civil Suit No. 38 of 1928 in the Court of the Subordinate Judge, First Class, Burhanpur, against Pandit Kashinath, Fulchand, Sadasheo Trimbak and Rameshwardas. Prior to this in Civil Suit No. 2 of 1927 a money decree had been passed in favour of Pandit Kashinath in the Court of the Subordinate Judge First Class, Hoshangabad. The Subordinate Judge, First Class, Burhanpur, attached this latter decree before judgment in the course of Civil Suit No. 36 of 1928, and after judgment in their favour the decree-holders, the present appellants Bansilal and Pannalal, have applied for execution of the decree. After the passing of the decree however in the Burhanpur Court Pandit Kashinath was adjudged an insolvent and two of the other defendants, Sadasheo Trimbak and Rameshwardas, were appointed receivers of his estate. These receivers consequently objected to the execution of the decree of the Burhanpur Court on the ground that, as Pandit Kashinath had been adjudged an insolvent, the decree-holders could not execute their decree against him.
(2.)THE learned Counsel for the appellants has contended that under the provisions of Order 21, Rule 53, the appellants became the representatives of the decree-holder in the Hoshangabad Court and as such were entitled to execute that decree in any manner lawful for the decree-holder under the provisions of Order 21, Rule 53(3). That contention would of course be correct, had the decree-holder in the Hoshangabad Court not been adjudged an insolvent. We would agree, however with the Judge of the lower Court that the effect of the adjudication would be to prevent execution of the insolvent's decree. When the adjudication was made, the insolvent's property, which included the decree vested in the receivers, and the receiver's rights would not be affected by the prior attachment, whether the attachment was before judgment, as in the present case, or after the decree. We would refer to the note "Effect of Order of adjudication on attachment" at p. 213, Civil P. C., by Mulla, Edn. 9, and to the note " effect of order of adjudication on attachment before judgment" at p. 957 of the same work. It has been held in several decisions that attachment by itself does not give the attaching creditor any charge or lien on the property, nor does it give him any priority in respect of the property attached as against the Official Assignee or Receiver : the only effect of the attachment is to prevent private alienation. We would refer to Haranchandra Chakravarti v. Joy Chand and Kristnasawmy Mudaliar v. Official Assignee of Madras (1903) 26 Mad 673 in this connexion. Still less does an attachment before judgment confer any right.
Under the English Bankruptcy law it has been held that the issue of a writ of sequestration to enforce an order for the payment of a debt into Court, coupled with the receipt of money of the debtor by the sequestrator, does not of itself make the creditor a secured creditor within the meaning of the Bankruptcy Act, 1883 ; vide In re H. E. Pollard (1903) 2 KB 41 and this case has been followed by the Madras High Court in Errikulappa Chetty v. Official Assignee, Madras (1916) 39 Mad 903, where Seshagiri Ayyar, J., has held that the decision in the above English case enunciates the true principle applicable to such eases and that the sequestration under which the money was brought into Court in that case corresponds to attachment under the Indian law. In the present case, as noted above, the decree in the Court of the Subordinate Judge, First Class, was attached before judgment, and we hold that that attachment gives the appellants no priority over the Receivers and that therefore they are not entitled to execute their decree under the provisions of Order 21, Rule 53. We therefore dismiss the appeal. Costs of the appeal will be borne by the appellants. We fix pleader's fees at Rs. 50.