(Appeals (disposed of on 27-7-1942) under Cl. 15 of the Letters Patent against the judgments and decrees of Happell J. dated 7th January 1941 in S.A. Nos. 148 and 149 of 1939 preferred to the High Court against the decrees of the District Court of Kistna in A.S. Nos. 208 and 213 of 1937 respectively preferred against the decrees of the Court of the District Munsif of Gudivada in O.S. Nos. 128 and 129 of 1935 respectively.)

Leach, CJ.

These appeals have been heard together. The facts are the same in each case and they both raise the same question of law, namely, whether S. 64 of the Code of Civil Procedure applies in the circumstances. Happell, J. who heard the second appeals out of which these appeals arise was of the opinion that it did not. Being appeals filed under Cl. 15 of the Letters Patent we are only concerned with the legal question.

In 1927 one Chalasani Anjaneyulu filed a suit in the Court of the Subordinate Judge of Masulipatam against two defendants, named Lakshminarayana and Chalasani Ramayya respectively. The plaintiff failed to establish his case and consequently his suit was dismissed with costs, each defendant being given one set. On the 16th April 1930 Lakshminarayana transferred his decree for costs to the appellant. Chalasani Ramayya filed E.P. No. 42 of 1932 to enforce payment of the costs decreed to him and in these proceedings attached on the 22nd July 1932 immoveable properties belonging to the judgment-debtor. On the 20th March 1933 the Court sold by public auction the properties attached, but before the sale was confirmed the judgment-debtor deposited the amount of the decree plus the solatium of five per cent required by O. 21, R. 89 and on the 29th July 1933 the sale was set aside under O. 21, R. 92.

On the 1st March 1933 the appellant filed E.P. No. 32 of 1933 to enforce payment of the amount due from the judgment-debtor to him as the assignee of Lakshminarayanas decree. He asked for the attachment of the properties which Chalasani Ramayya had attached and for rateable distribution. On the 1st April 1933 the Subordinate Judge passed an order recognising the appellant as the assignee of Lakshminarayanas decree and his right to rateable distribution, but made no order of attachment on this petition. The judgment-debtor had objected to the appellant being permitted to proceed in execution because he challenged the validity of the assignment of the decree. As the result of the order passed by the Subordinate Judge on the 1st April 1933 the judgment-debtor appealed to this Court. His appeal was allowed and the case remanded to the Subordinate Judge with instructions to hear the judgment-debtors case on its merits. This the Subordinate Judge did and came to the conclusion that the judgment-debtors opposition was groundless. The result was that on the 7th December 1936 he passed a similar order to the one which he had passed on the 1st April 1933.

On the 23rd June 1933 the appellant filed another application asking for the attachment of the properties belonging to the judgment-debtor. An order of attachment was passed on the 30th June 1933, but was discharged on the 31st October 1935.

On the 12th May 1933, that is during the attachment effected by Chalasani Ramayya of the judgment-debtors properties, the judgment debtor sold a portion of them to one Namayya. This sale provided him with the money to pay into Court the amount due to Chalasani Ramayya under his decree, plus the solatium payable to the auction purchaser. The judgment-debtor had previously sold another portion of the attached properties to a person named Sundaramma. That sale took place on the 30th July 1932, eight days after Chalasani Ramayya had obtained the order of attachment. Sundaramma bequeathed the property bought by her to one Sowbhagyamma under a will dated the 1st April 193

4. On the 10th March 1934 Namayya filed a petition under O. 21, R. 58 objecting to the attachment which had been effected by the appellant on the properties of the judgment-debtor on the 30th June 193

3. Namayyas petition was dismissed and accordingly he brought O.S. No. 128 of 1935 in the District Munsifs Court of Gudivada under O. 21, R. 63, to establish the right which he claimed. It is out of this suit that L.P.A. No. 15 of 1941 arises. The attachment effected by the appellant on the 30th June 1933 caused Sowbhagyamma also to file a petition of objection. This was likewise dismissed and consequently she filed O.S. No. 129 of 1935, which has given rise to L.P.A. No. 16 of 1941.

The two suits were tried together. The question at issue was whether the alienations were void under S. 64 of the Civil Procedure Code. The appellant, who was the 1st defendant, claimed that S. 64 applied and as the alienations in favour of the plaintiffs had been made after the attachment effected by Chalasani Ramayya on the 22nd July 1932 they were void as against him, he being entitled to rateable distribution as the result of his application of the 1st March 193

3. He could not rely on the order of attachment made on his application of the 23rd June 1933 as that had been passed after the alienations, and moreover the attachment had been discharged. The District Munsif held that as the result of Chalasani Ramayyas attachment the alienations were void under S. 64 and consequently dismissed the two suits. Appeals followed to the District Judge of Kistna. The District Judge agreed with the District Munsif and this led to the plaintiffs appealing to this Court. They were heard by Happell J. who allowed them, as he considered that the alienations were not void under S. 64 of the Code of Civil Procedure. The basis of his decision was that as the sale had been set aside under O. 21, Rr. 89 and 92, the appellant could not claim rateable distribution because there was nothing to distribute.

It cannot be denied that as the result of the setting aside of the sale which took place on Chalasani Ramayyas petition the attachment came to an end. The decree-holder got the decretal amount which the judgment-debtor had paid into Court, the auction purchaser received back the money which he had paid into the Court as the purchase consideration, plus the solatium of five per cent and the judgment-debtor remained in possession of his property free from any liability to Chalasani Ramayya.

S. 64 of the Code of Civil Procedure states:

Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Explanation :

For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

When one decree-holder has attached property belonging to his judgment-debtor in execution of his decree another person holding a decree against the same judgment-debtor can apply to the Court under S. 73 for rateable distribution of the assets realised in the execution proceedings instituted by the first decree-holder and when he applies before the assets are realised, that is brought into Court, he is entitled to rateable distribution. Ss. 64 and 73 allow the second decree-holder to come in on the same terms as the first decree-holder, provided he moves the Court in time. He cannot apply for rateable distribution after the assets have been realised. See Nana Rao v. Arunachalam Chettiar (I.L.R. 1940 Mad. 526 = 51 L.W. 270 (F.B.). This means that any alienation made by the judgment-debtor after the attachment is void as against a creditor who has applied for rateable distribution in time.

The appellant says that as he applied in time for rateable distribution the alienations made by the judgment-debtor in favour of the plaintiffs must be deemed to be void under S. 6

4. In our opinion S. 64 does not help the appellant. S. 64 does not say that the alienations shall be void absolutely. What it says is that they shall be void as against all claims enforceable under the attachment. When the attachment is set aside by reason of the decree-holder having been paid in full, the attaching decree-holder has no claim against the judgment-debtor and therefore there is no claim enforceable under the attachment. The appellant was not paid and he had a claim against his judgment-debtor, but as the attachment had been set aside it was not a claim which could be enforced under the attachment and unless it was enforceable under the attachment S. 64 could not apply. Happell J. has based his decision on the fact that when the decree-holder was paid and the auction purchaser withdrew his money from Court there was nothing to distribute. That is true, but we prefer to put it on the ground that the Court was no longer concerned with the alienations in favour of the plaintiffs because these alienations were only void against the appellant under S. 64, so long as he had a claim which was enforceable under the attachment. He had no such claim when these suits were brought and the alienations could not be challenged under that section. It follows that we agree with the opinion expressed by the Bombay High Court in Kushalchand v. Sahebram (35 Bom. 516) that the moment the attachment ends all claims which were enforceable under it cease to be enforceable. Whether the alienations can be challenged here on another ground is a different matter. Other issues were raised in the suits and the learned Judge has remanded them for trial on the merits.

As we consider that the learned Judge was right in holding that S. 64 did not apply we dismiss the appeals with costs.