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1870

v. PANCHILAL

SARMA,

shall be competent to the Court" being obligatory, and so is ANAND CHAN- section 97, where, if the plaintiff satisfies “the Court that there

“ are sufficient grounds for permitting him to withdraw from the “suit with liberty to bring a fresh suit for the same matter," the Court is bound to grant the permission.

In several sections the word “may ” is clearly obligatory, for instance—84, 90, 101, 143, and the first part of 102. In the latter part of this Section the words “ if it think proper” are introduced after “may” apparently to show that it is not obligatory. Section 351 is another instance of this, the words there being “if it think right.”

In Section 92, as to injunctions, the words “it shall be lawful for the Court” are clearly obligatory when a proper case arises. It would be contrary to the whole scope of the Act to hold that by an attachment after decree the creditor does not acquire a right to have the property sold, and that the Court may arbitrarily refuse to issue the order for sale.

Section 240 appears to me to furnish a strong argument against the Official Assignee. By that section the right or equity created by the attachment is such that it cannot be affected by even a bona fide alienation for value without notice of it. The vesting order ranks no higher than a gratuitous alienation, and it cannot be consistently held that it is to defeat the attachment when an alienation for value is not allowed to do so. It was argued that after the vesting order, the property cannot be sold as that of the judgment-debtor, as it has passed to the Official Assignee, but the answer to that is that it has so passed subject to being divested by a sale in execution of the decree, and it may still be sold as the property of the judgment-debtor. In this case, I think, the sale on the 17th of April by order of the Zillah Judge was legal notwithstanding the vesting order, and the defendant Anand Chandra Pal acquired a good title to the property it, and that the plaintiff has no right to recover it from him.

under

BAYLEY, KEMP, and JACKSON, JJ., concurred.

PHEAR, J. – During the argument in this case, both sides seemingly considered that decisions given by me in two former

1870

DRA PAL

v.

SARMA.

a

cases—Petumber Mundle v. Cochrane (1), Roy Chunder Roy v. Bampton (2) afford material support to the position which the Anand Chanpresent plaintiff endeavours to maintain.

PANCHILAL Judging from the mode in which those decisions have been used both here and elsewhere, I cannot help thinking that their effect has been in some degree misunderstood, and that an explanation of them will not be out of place now. In each of the cases it happened that the contest turned solely on the immediate proprietary rights of the parties, whatever those were, in the subject attached at a time when a vesting order had been made by the Insolvent Court after attachment (under different circumstances in the two cases) and when a sale had not taken place nor even an order for sale passed.

The material facts of the first case were as follows. A suit was pending before the High Court in which before decree certain property had, at the instance of the plaintiff, been attached as being the property of the defendant. After the date of this attachment, and also before decree, an order of the Insolvent Court was made by which all the property of the defendant vested in the Official Assignee. The Official Assignee thereupon claimed the attached property under the provisions of Section 86 of the Civil Procedure Code, and succeeded in getting the attachment removed and the property handed over to him. The plaintiff then proceeded to trial, and having obtained a decree without taking any proceedings in execution either by re-attaching the property or otherwise brought a regular suit against the Official Assignee for the purpose of asserting a right of some sort to the property solely upon the foundation of the original attachment. The Court in giving judgment remarked upon the peculiarly indefinite character of the right put forward by the plaintiff, and it dismissed the plaintiff's suit on the ground that an attachment effected before decree did not alone create in favor of the plaintiff any such definite lien or charge on the property in the hands of the Official Assignee as could be realized in a separate suit.

In thesecond case, namely, in Roy Chunder Roy v. Bampton (2)

(1) 1 Ind. Jur., N. 9, 11.

(2) 2 Ind. Jur., N. S., 188.

1870

SARMA.

money due to the judgment-debtor in the hands of the AdminisANAND CHAN- trator-General was attached by the High Court in execution of PanChILAL

a decree passed by itself, and afterwards before any further steps were taken to obtain execution the judgment-debtor filed his petition in the Insolvent Court, and the usual vesting order was made thereon. In this state of things the judgment-creditor applied to the High Court for execution of his decree by the payment over to him of the monies attached, insisting that the attachment had given him a right to them in the shape of a lien or charge upon them for the amount of his decree. The only contested question before the Court was, as the Court itself stated it, whether the assets, at the time when by virtue of the vesting order they passed into the hands of the Official Assignee, carried with them an existing liability to be sold in execution of the decree for which they were attached, in priority to the rights of the Official Assignee as representing the general body of creditors. The Court answered this question in the negative, and after holding that the execution proceedings had not gone far enough to yield the judgment-creditor any such right as would bind the property in the hands of a bona fide alienee, it expressed the opinion on the particular facts of the case that there was no hardship in the judgment-creditor being placed on the same footing as all the other creditors. Accordingly it refused the judgment-creditor's application for an order for sale, or rather its equivalent, an order for transfer of the money, as it well might in exercise of the discretion reposed in it by section 49 of the Insolvent Act.

The footing upon which the decision of the Court in each of these cases rested, may be thus stated, namely, that the attachment, whether effected in the course of the suit before decree as in the first case, or in the execution proceedings after the decree as in the second case, did not of itself alone create in favor of the attacher any lien or other proprietary interest in the property attached, and, after the able discussion of all the authorities bearing upon the point which has taken place before us, I see no reason now for altering this statement of the law or for thinking that those cases were in any degree wrongly decided.

1870

DRA PAL

V.

SARMA,

It appears to me, however, that the rights of the parties to the present suit lie entirely outside the scope of those decisions. ANAND CHANThe defendant founds his claim to be the owner of the land and

PANCHILAL house, for which the plaintiff sues, upon the title of a sale made to him by the Civil Court in the execution proceedings of a certain suit between other parties. The land and house, when attached in the course of those proceedings were the property of the judgment-debtor, but before the sale took place a vesting order of the Insolvent Court transferred the property to the Official Assignee. Under these circumstances we are not called upon to consider whether or not the factum of an attachment gives the judgmentcreditor a right of lien which the Court executing the decree is bound to enforce without regard to the occurrence of insolvency : but the material question before us is substantially this, namely, did the Civil Court, at the time of making the sale on the facts of the case referred to us, possess the power of selling which it affected to exercise, notwithstanding the previous alienation of the property to the Official Assignee. I think a little consideration will show that the answer to this question does not hinge upon the nature of the action, if any, which attachment may have upon the proprietary rights of any one on the subject which is attached.

I will endeavour shortly to explain the mode in which the matter presents itself to my mind. When in any ordinary money suit, the property of the defendant is attached before decree, it seems clear to me that that property does not thereby become any element in the lis pendens. But when a decree or order has been passed in the suit, and the judgment-creditor, by way of proceeding to obtain execution thereof, asks the Court to attach specified property of the judgment-debtor, the case is wholly changed in this respect : the judgment-creditor by that step sets up a right to have his claim satisfied out of that particular property, and, if the attachment so sought be made, thenceforward the attached property, so far as the purposes of the execution are concerned, constitutes the substantial subject of suit between the parties. Now, if we suppose for the moment that the property, instead of having thus become the subject of litigation between the parties in the execution stage of a suit for money, had been the original subject of the suit, and if, during the

1870

DRA

PANCHILAL

SARMA.

pendency of such suit, before decree, the owner had aliened Anand Cuan- it, then no doubt, upon principles of public expediency which

are acknowledged in all our Courts, the alienee would be held to take with express notice of the suit and would be bound by the decree therein, though not himself a party thereto: but I understand the operation of this doctrine to be limited to the actual subject of the suit itself; it does not extend to collateral proceedings, and, even as regards the subject of suit, loses its force when the alienation is involuntary. Thus, for instance, in the English Court of Chancery in the event of a defendant in a suit becoming bankrupt, the plaintiff can only effectively proceed with the suit by making the assignee a party. Going back then from this point to that subsidiary suit against the property of the judgment-debtor, which for convenience' sake I take the proceedings in execution of a money decree to constitute, I think the general principle, namely, the principle that ordinarily a decree of the Court only binds the parties to the suit is here unaffected by the doctrine which I have mentioned, and therefore would, apart from legislative enactment, prevent what I may term the execution suit from being infructuous in regard to so much of its subject as might be aliened during its pendency until at least the alienee should be brought within its scope by being made a party. In England where the execution proceeding is nothing more than the act of suing out the writ and placing it in the hand of the Sheriff, there is little risk of its being defeated by an alienation during its pendency. But in this country the case is different. Under the Code which governs procedure here the proceedings necessary to obtain execution of a decree of Court commonly rival, in length and complexity, the proceedings of the suit before decree, and not seldom greatly exceed them in these respects. The legislature has accordingly thought fit to provide against fraud or vexatious conduct on the part of the judgment-debtor towards his judgment-creditor pending the execution proceedings, by the enactment of Section 240 of Act VIII of 1859. At one time there was some difference of opinion relative to the exact operation of this section, but it is now settled by a decision of the Full Bench (1), as I understand it, that the effect of the

(1) 2 B. L, R., F. B., 49,

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